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ClientEarth Communications

17th October 2016

Rule of law

European Environmental Law Observatory News – July 2016

The observatory covers information about the application 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 January and July 2016.

Section A: Aarhus Convention

A.1 Findings and recommendations with regard to communication ACCC/C/2012/76 concerning compliance by Bulgaria – Access to justice – Article 9(4) of the Convention – 7 March 2016

The communication concerns the way Bulgaria applies Article 9(4) of the Aarhus Convention to ensure adequate and effective remedies, including injunctive relief, as appropriate, to review procedures regarding orders for the preliminary enforcement of EIA/SEA decisions.

The Committee stated that the requirement in article 9(4) of the Convention that injunctive relief and other remedies be “effective” includes, inter alia, an implicit requirement that those remedies prevent irreversible damage to the environment.

The Committee also took the opportunity to state that the Convention does not make participation in the administrative procedure a precondition for access to justice to challenge the decision taken as a result of that procedure, and introducing such a general requirement for standing would not be in line with the Convention.

Finally, with respect to appeals of orders for preliminary enforcement challenged on the ground of potential environmental damage, the Committee found that a practice in which the review bodies rely on the conclusions of the contested EIA/SEA decision, rather than making their own assessment of the risk of environmental damage in the light of all the facts and arguments significant to the case, taking into account the particularly important public interest in the protection of the environment and the need for precaution with respect to preventing environmental harm, does not ensure that such procedures provide adequate and effective remedies to prevent environmental damage. Bulgaria therefore fails to comply with Article 9(4) of the Convention.

Pursuant to paragraph 36(b) of the Annex to decision I/7 of the Meeting of the Parties, with the agreement of Bulgaria, the Committee adopted the following recommendations:

To review the approach taken by the courts to appeals of orders for preliminary enforcement challenged on the ground of potential environmental damage, and undertake practical and/or legislative measures to ensure that:

(a) Instead of relying on the conclusions of the contested EIA/SEA decision, the courts in such appeals make their own assessment of the risk of environmental damage in the light of all the facts and arguments significant to the case, taking into account the particularly important public interest in the protection of the environment and the need for precaution with respect to preventing environmental harm;

(b) The courts in their decisions on such appeals set out their reasoning to clearly show how they have balanced the interests, including the assessment they have undertaken of the risk of environmental damage in the light of all the facts and arguments significant to the case, taking into account the particularly important public interest in the protection of the environment and the need for precaution with respect to preventing environmental harm;

(c) Training and guidance is provided for judges and public officials in relation to how to carry out the above-mentioned balancing of interests in environmental case, including on how to properly reflect that balancing in their reasoning.

Anaïs Berthier

A.2 Draft findings and recommendations of the Aarhus Convention Compliance Committee concerning compliance by the European Union with the Aarhus Convention – 24 June 2016

The Aarhus Convention Compliance Committee (ACCC) has adopted its draft findings in case C/32, which stems from a communication submitted in 2008 by ClientEarth alleging a failure by the EU to comply with its obligations on access to justice in environmental matters under Article 3, paragraph 1, and article 9, paragraphs 2, 3, 4 and 5 of the Aarhus Convention. In Part I of the Communication (2011), the ACCC recommended the EU to take the necessary steps to overcome the shortcomings of the EU Courts’ jurisprudence in access to justice in environmental matters, but refrained from examining whether Regulation 1367/2006 (the Aarhus Regulation) or any EU internal remedies met the requirements on access to justice in the Convention until after the outcome of the Stichting Milieu case, which was pending at that time.

In the light of the outcome of the above-mentioned case and after examining the EU case-law developments in access to justice since Part I (and particularly the Microban and Inuit cases), the Committee has now concluded that the EU fails to comply with Article 9, paragraphs 3 and 4 of the Aarhus Convention with regard to access to justice by members of the public because neither the Aarhus Regulation nor the jurisprudence of the ECJ implements or complies with the obligations arising under those paragraphs.

First, according to the ACCC, Article 10(1) of the Aarhus Regulation fails to correctly implement the Aarhus Convention, since the former limits the concept of “acts” as used in Article 9(3) of the Convention, to “administrative acts” defined in Article 2(1) (g) of the Aarhus Regulation as “measure[s] of individual scope”. There is no reason, according to the Committee, to consider that the Convention only covers acts of individual scope. Second, Article 10(1) of the Regulation only entitles NGOs that meet particular criteria to make a request for internal review, whilst Article 9.3 not only includes NGOs, but requires “members of the public” to be given access to administrative or judicial procedures. Third, the ACCC concluded that the combined effect of Article 2(1) (g) and Article 2(1) (f) of the Aarhus Regulation is too narrow and that, accordingly, the Aarhus Regulation fails to implement the requirement set out in Article 9, paragraph 3 of the Aarhus Convention, to provide a right of challenge against acts which contravene laws relating to the environment. In the view of the Committee, the scope of Article 9(3) includes, but is not limited to, acts issued under environmental law; it also covers acts which have not been adopted under environmental law, insofar as they contravene laws related to the environment under the Convention. Fourth, Article 10(1) of the Aarhus Regulation is in breach with the Convention in that it only covers acts that have legally binding and external effects. Fifth, the exemption of administrative review provided in Article 2(2) of the Aarhus Regulation is not consistent with the requirements of the Convention, which does not exclude public authorities when they act by way of administrative review. Finally, the Committee concluded that the EU Courts may still interpret Article 12 of the Aarhus Regulation in a way that would be in compliance with the Convention.

The Compliance Committee calls for the Aarhus Regulation to be amended in a way that would make it clear to the ECJ that legislation is intended to implement Article 9(3) of the Convention. The ACCC further recommended that the ECJ interprets EU law in a way which is consistent with the objective of providing adequate and effective judicial remedies for members of the public to challenge acts which contravene national law relating to the environment.

The next step is that the Commission sends its observations to the Committee by October. As part of a UN non-confrontational process, the ACCC’s findings are not legally binding and they need to be endorsed by the Meeting of the Parties (MOP) including the EU itself. Until now the findings have always been endorsed.

José Antonio Campos

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

B.1 Case C-472/14, Canadian Oil a.o, judgement of 17 March 2016, ECLI:EU:C:2016:171

(Reach Regulation – national registration of chemicals – not prohibited by REACH registration – justified barrier to trade)

This is a preliminary judgment, delivered on request of the Supreme Court of Sweden. The applicants in the case imported some 400 tonnes of chemical products without notifying the Swedish authorities. They were fined, but argued that they had had to register their imports already under Article 1(6) of EU Regulation 1907/2006 (REACH) to the European Chemical Agency ECHA. A second notification for registration was thus not compatible with Regulation 1907/2006 and constituted an unjustified barrier to trade.

The Court of Justice found that the Swedish registration requirement was justified. It stated that Member States were obliged to set up a control system for chemicals and supervise operators and users of such chemicals. In order to comply with that obligation, they had to have precise data on the location of the chemicals in their territory, the specific areas of use and the operators who were concerned. The registration of chemicals with ECHA did not contain information on where exactly in the EU the chemicals would be marketed. It had another objective, namely to supply data on the risks related to the chemicals which were imported. The national Swedish registration system did not make the import of chemicals into Sweden dependant on a prior registration. It constituted thus a complementary system to the EU registration system and was therefore compatible with the REACH Regulation.

The Court found that the Swedish requirement of registration constituted a measure of equivalent effect to a quantitative restriction of free trade within the EU (Article 34 TFEU). However, as it was set up to enable controls of chemicals and the management of such a control system, it was justified. The Court left open whether this justification was derived from Article 36 TFEU (protection of the life and health of humans) or of an overriding interest to protect the environment (its Cassis-de-Dijon jurisprudence).

Ludwig Kramer

B.2 Case C-346/14, Commission v. Austria, judgement of 4 May 2016. ECLI:EU:C:2016:322

(Framework Directive 2000/60 on water; deterioration of water quality by construction of a hydropower plant in a river; justification of the project on the basis of Article 4(7) of Directive 2000/60)

The Commission brought the action against Austria regarding its authorisation of a hydropower plant in the Schwarze Sulm River in the Steiermark Region. The Commission considered that this construction led to a deterioration of the water quality of the river and could not be justified by the derogation which Article 4(7) of the Water Framework Directive permitted under certain circumstances.

The Court found that indeed the construction of the plant would lead to a deterioration of the water quality of the Schwarze Sulm over a stretch of eight kilometers. Such a deterioration was, in principle, prohibited under Article 4(1) of Directive 2000/60. This provision also applied to individual, specific measures such as the construction of the plant in question.

The Court then concentrated on the question of whether the conditions for a derogation which were laid down in Article 4(7) of the Directive had been complied with. It found that Member States had a margin of discretion as to the question of whether a specific project was of overriding public interest and that Austria could not be blamed for declaring the construction of being in the public interest. As to the other conditions of Article 4(7), the Court found that the Governor of Steiermark when authorising the construction, had in detail elaborated the reasons why these conditions were complied with, though the arguments used by the Governor stemmed from a study which a University institute had written for the applicant of the project. The Commission had not complained in detail that the study in question was incomplete or incorrect, but had limited itself to raising general objections. The Court therefore considered that Austria had demonstrated that the conditions of article 4(7) had been complied with.

It is regrettable that the Court’s judgment is based on the Steiermark Governor’s authorising decision which reproduced, apparently almost completely, the arguments of a study which was submitted to him by the promoters of the project. An environmental impact assessment which is, because of the requirement of public participation, normally a more objective way of assessing the advantages and disadvantages had apparently not been made for the project, without the Commission having raised that issue.

Ludwig Kramer

B.3 Case C-69/15, Nutrivet, judgement of 9 June 2016, ECLI:EU:C:2106:425

(Regulation 1013/2006 on the shipment of waste; documents not filled in properly. Proportionality of fines)

This case concerned the shipment of waste paper (green-listed waste) from Macedonia to Hungary. At an inspection, the Hungarian authorities found that the accompanying documents, established under Regulation 1013/2006, were wrongly filled in as regards the importer, the recovery facility of the waste and the country of the final destination. An international consignment note, accompanying the transport, contained correct information. The shipping company was fined, but considered the fine to be disproportionate, also because the wrong indications had not been made with a fraudulent intention.

The Court held that the incorrect or inconsistent filling in of the EU documents accompanying the shipment according to Regulation 1013/2006, constituted an illegal shipment. It was not relevant that the consignment note contained correct indications. It was not either relevant that the wrong indications had not been made with a fraudulent intention.

The question of whether the fine imposed on Nutrivet was disproportionate had to be answered by the national court which had to take into consideration all factual elements of the case.

The case is of a certain interest, because it underlines, in accordance with the settled case-law, that the correct implementation of the EU documents accompanying waste shipments, is of high relevance for the protection of human health and the environment and cannot be considered as a banality.

Ludwig Kramer

B.4 Case C-648/13, Commission v. Poland, judgement of 30 June 2016, ECLI:EU:C:2016:490

(Framework Water Directive 2000/60; requirements to transpose definitions of a directive)

(Framework Water Directive 2000/60; requirements to transpose definitions of a directive)

The Commission brought the action, arguing that Poland had not transposed a number of definitions and other provisions of the Water Framework Directive 2000/60 into its national legal order. The Court confirmed its settled case law according to which the literal transposition of definitions of a directive were not required by a Member State, “provided that it does effectively ensure the full application of the directive in a sufficient clear and precise manner” (paragraph 73). Later, the Court argued: “The provisions of directives must be implemented with unquestionable binding force and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty” (paragraph 87). “The interpretation of a national provision on water protection in accordance with a number of other provisions dispersed throughout several different pieces of legislation which do not prima facie address water protection does not meet those requirements” (paragraph 88).

Based on these general considerations, the Court held that Poland had not transposed the definitions of “groundwater status”, “good groundwater status”, “quantitative status” and “available groundwater resources” which were laid down in Directive 2000/60, into its national legal order.

Also the requirement of Article 8(1) that monitoring programmes had to be established and applied was not transposed into Polish law. The same applied to the provision of Article 9(2) of Directive 2000/60, according to which Poland had to report on its river basin management plans and on planned steps to implement the principle of recovery of the costs of water services.

Furthermore, the Court held that Articles 10(3), 11(5), Annexes V and VII had not completely been transposed into Polish law at the time that the Commission had set in its reasoned opinion (June 2010), without considering whether later legislation had remedied these infringements.

The importance of this case lies in the clarification on the requirement to transpose definitions of a directive into national law. Numerous national transposing measures are not fully complying with the requirements established by the Court. It has to be noted, though, that the term of “legal certainty” which is decisive for the Court, is itself vague and allows rather diverging interpretations. Complaints or court applications should therefore carefully weigh up whether the lack of transposing a definition of a directive really leads to a lack of legal certainty.

Ludwig Kramer

B.5 Case T-44/14, Costantini a.o v. Commission, judgement of 19 April 2016, ECLI :EI :T :2016:223

The applicants wanted to start a citizen initiative under Article 11 TEU. The initiative had the title: “Right to life-long care. Leading a life of dignity and independence is a fundamental right”. They wanted the Commission to “propose legislation ensuring (the) fundamental right to human dignity by guaranteeing adequate social protection and access to quality, sustainable long-term care above and beyond health care”.

The Commission refused to register the application, invoking Article 4(2)(b) of Regulation 211/2011, according to which an application could not be registered, when it “manifestly falls outside the framework of the Commission powers to submit a proposal for a legal act”. The applicants were of the opinion that either Article 14, Article 153 or Article 352 TFEU constituted a legal basis for a legislative initiative of the Commission.

The General Court did not share this opinion. It held that the applicants wanted, in substance, the establishment of long-term care as a service of general interest. However, according to Article 14 TFEU, the Member States were competent to commission and to fund services of general interest and to define their scope and organisation. They had a wide discretion in this regard. The Commission could only intervene, when there was a manifest error in the Member State’s decision. Also the EU provisions on the internal market and on competition did not give competence to the Commission to make proposals in order to exclude a service – be it a service of general interest – from the application of these provisions.

The General Court rejected the application of Article 153 TFEU, as that provision aimed at the social protection of workers, whereas the applicants had in mind a much wider field of application of the long-term care service. A Commission proposal could not either be based on Articles 14 and 153 TFEU together, as neither provision gave a competence to the Commission to propose a universal service of general interest.

In its answer to the applicants, the Commission had not specifically commented on the application of Article 352 TFEU, but had generally argued that the EU Treaties did not gave it competence to make a proposal for legislation according to the application. The Court found that an explicit comment on Article 352 TFEU was not necessary, all the more as the applicants had not mentioned that provision in their application.

The application was thus dismissed.

Ludwig Kramer

B.6 Case T-110/15, International Management Group v. Commission, judgement of 26 May 2016

The International Management Group (the applicant) was subject to an investigation by OLAF for possible irregularities in the allocation of EU-funds in its favour. The applicant sent a request to OLAF for access to documents relating to the inquiry pursuant to Regulation 1049/2001.

OLAF refused full disclosure on the ground that it would undermine the protection of inspections, investigations and audits provided for in the third indent of Article 4(2) of Regulation 1049/2001.

In its judgment, the General Court established a rebuttable presumption that disclosure of documents pertaining to OLAF’s investigations “undermines, in principle, the effective conduct of the investigations”. This presumption is applicable either when the investigation procedure is still ongoing or when it has been recently closed by OLAF, to the extent that the follow-up of the investigation takes place within a “reasonable period”. In the view of the Court, if the reasonable period for the national authorities to decide what action to take in light of the information sent by OLAF has not yet expired, access to OLAF’s investigation file could compromise the use of those elements by the national authorities. It is only if the authorities to whom the final report is addressed intend to adopt acts which adversely affect the persons concerned (for example, if the authorities intend to impose penalties on a person concerned by the investigations) that they must provide access to OLAF’s final report in order to enable those persons to exercise their rights of defence. Additionally, this presumption can be rebutted if there is a higher public interest justifying the disclosure of the documents concerned.

It is interesting to note the General Court’s approach in case T-391/03 where it held that “to allow that the various documents relating to inspections, investigations or audits are covered by the exception referred to in the third indent of Article 4(2) of Regulation 1049/2001 until the follow-up action to be taken has been decided would make access to the documents dependent on an uncertain, future and possibly distant event (…). Such a solution would be contrary to the objective of guaranteeing public access to documents relating to any irregularities in the management of financial interests”. Similarly, in case C-612/13 P ClientEarth v Commission the Court of Justice confined the use of the exception to Commission compatibility studies that had been placed in a pre-litigation file. In this case the Court of Justice seems to have taken a more lenient view as to when the exception can be used, so as to cover documents relating to imminent proceedings and their follow-up, to the extent that that follow-up takes place within a reasonable period. It is therefore of vital importance that the EU Courts provide further clarification on the duration of the follow-up period and do not extend the scope of the exception any longer.

José Antonio Campos

Section C: Decisions of the European Ombudsman

C.1 Recommendations of the European Ombudsman in her strategic inquiry concerning the composition of Commission expert groups (OI/6/2014/NF)

In January 2016, the European Ombudsman published her recommendations in the framework of her own-initiative inquiry concerning the composition of Commission expert groups opened in May 2014. The Ombudsman welcomed the positive reply made by the Commission in its opinion to the inquiry, where the institution adopted several commitments to tackle the deficiencies in the composition of the groups and to facilitate better public scrutiny of their work. The Ombudsman welcomed, inter alia, the Commission’s commitment to enhance the visibility of calls for applications, to require registration in the Transparency Register for appointment to expert groups, to provide more information on the interest represented by individual experts and to review the classification of expert group members in the register. However, the new policy concerning the rules on the creation and operation of expert groups adopted by the Commission in May 2016 has failed to fulfil some other commitments made to the Ombudsman, notably on the following operational aspects of these groups:

First, the Ombudsman raised her concerns on the voluntary self-assessment system proposed by the Commission for declarations of interests of individual experts appointed as members acting in a personal capacity. The Ombudsman insisted that individual experts appointed in their personal capacity must be required to update their declarations of interests on a yearly basis to ensure an efficient system of control.

Second, the concept of balance remains as one of the main battlegrounds for the Ombudsman, who recommended that the new rules set out a definition of this concept and require that each individual expert group achieve a balanced composition. The Ombudsman further claimed that a categorization of economic and non-economic interest is necessary to clarify the ratio of the interests represented in expert groups and echoed the concerns of civil society organizations, which often encounter difficulties to participate in expert groups as compared with economic interest groups.

Despite providing a formal conflict of interest policy, the Commission’s new policy on expert groups does not reflect the Ombudsman recommendation to require that individual experts appointed in their personal capacity update their declarations of interest and is limited to providing that individual experts “shall be required to promptly inform the competent Commission department of any relevant change in the information previously provided (in the declaration of interests)” (Article 11.5 Commission Decision). As regards the composition of the groups, the new policy is limited to calling for a general commitment “for a balanced composition” (Article 10). However, it neither sets out any concept of “balance”, nor does it provide any specific requirement of a balanced and adequate composition of expert groups (except for a minimum of 40% representatives of each gender in each expert group). Hence, as it stands, the new policy adopted by the Commission does not guarantee the representation of non-economic interests and thus leaves the role of businesses which dominate expert groups unchallenged.

In conclusion, it seems that the Commission’s new policy fails to follow the Ombudsman recommendations to implement an adequate operating framework for expert groups which ensures the principle of “equality of arms” between economic and non-economic interests. As regards the transparency policy of documents related to expert groups, the Commission commits to publish the agenda and minutes of the meetings in a timely manner, which is a significant step forward for their transparent functioning.

The European Ombudsman is still to publish her closing decision as to whether the Commission has followed the recommendations.

José Antonio Campos

C.2 Decision of the European Ombudsman in case 12/2013/JN on the practices of the European Commission regarding the authorization and placing on the market of pesticides

This complaint was submitted by PAN-Europe, which claimed that the Commission had failed to take into account the scientific conclusions of the reviews carried out by the European Food Safety Authority (EFSA) when evaluating ten active substances for certain pesticides through the resubmission procedure. Additionally, PAN-Europe argued that the Commission should stop using the confirmatory data procedure (CDP), by way of which the Commission approves an active substance while simultaneously requesting data confirming its safety, with respect to certain pesticides.

Following the complaint, the EO opened an inquiry and made the following recommendations: First, to use the CDP restrictively, in a manner which is fully compliant with the precautionary principle and to prioritize the assessment of any relevant missing information before taking a decision on approval. Second, the EO urged the Commission to complete the assessment of the confirmatory data requested for the ten substances approved “without delay” and, were this was not possible, to review its approvals. Third, it recommended the Commission to review its approach to the definition of mitigation measures, to provide ways to improve the Foods and Veterinary Office (FVO) audits and, finally, to take appropriate measures to ensure that its audits are carried out in a timely manner.

In its reply to the EO’s first proposal, the Commission confirmed that it would request confirmatory information in line with the relevant legislation and take into account the consequences for human and animal health as well as the environment when granting approval for the substances. Moreover, it contended that the assessment of confirmatory information involves the same level of scrutiny as would a review of the approval. As regards the system on mitigation measures imposed by Member States, the Commission stated that these measures complied with the principle of subsidiarity. Finally, it argued that the FVO has adopted an adequate approach to assess the national authorization system for plant protection pesticides.

PAN-Europe claimed that there was not sufficient evidence that the Commission agrees to a restrictive use of the CDP and that the Commission’s commitment to assess missing information before taking a decision is contradicted by its current practices. It argued that, since EFSA has no mandate to conduct an independent peer review under the confirmatory information, the CDP does not involve the same level of scrutiny that the review of the approval does. Finally, PAN-Europe disagreed with the arguments put forward by the Commission concerning mitigation measures.

In closing her inquiry, the Ombudsman asks the Commission to submit a report within two years. The report should show, inter alia, (1) that the Commission uses the CDP in a more restrictive manner and strictly in line with Regulation 1107/2009, (2) that it has completed and updated the assessment of the active substances referred to, (3) that it has considered whether all confirmatory data should be systematically subject to an EFSA peer review, 4) that it has reviewed its approach to the definition of mitigation measures and that its approval decisions include further requirements which reflect EFSA’s conclusions.

José Antonio Campos

Section D: Decisions of other EU Institutions

D.1 Interinstitutional Agreement between the European Parliament, the Council and the European Commission on Better Law-Making of 13 April 2016

Following the negotiations launched under the Luxembourg Presidency, the new Interinstitutional Agreement on Better Law-Making was concluded on 13 April 2016. It replaces the previous Agreement on Better Regulation of December 2003 and the Interinstitutional Common Approach to Impact Assessment of 2005. It seeks to streamline the policymaking process by way of a series of initiatives and procedures, ranging from the utilization of better law-making tools to the adoption of measures on transparency and simplification of Union legislation.

First of all, the Agreement sets out the commitment to promote simplicity, clarity and consistency in the drafting of Union legislation and envisages strengthened cooperation between the institutions as regards the Union’s annual and multiannual programming. In the adoption of its annual Work Programme, the Commission agrees to take into account the Council and Parliament’s views and particularly their request for initiatives. Moreover, whenever the Commission plans to withdraw a legislative proposal, it is now obliged to provide the reasons for such withdrawal and to take into account the position of the co-legislators when doing so.

The Agreement stresses the importance of impact assessments and public and stakeholder consultation. With regard to the first, it requires the Commission to consult as widely as possible and it also envisages the possibility of the co-legislators to carry out assessments in relation to their amendments to the Commission’s proposals. It obliges the institutions to publish any impact assessment conducted during the legislative process. The scope of this obligation is, however, limited, since the institutions are only required to publish them by the end of the legislative process. With regard to public and stakeholder consultations, the Commission is bound to conduct public consultations “in an open and transparent way” and in a way that allows for the “widest possible participation”.

The provisions on delegating and implementing acts contain important novelties. To guarantee the interests of the Council, both the Interinstitutional Agreement and the Common Understanding on Delegated Acts (in annex) commit the Commission to consult Member States’ experts in the preparation of draft delegated acts. The Commission must share the draft delegated acts, the draft agenda and “any other relevant documents” with Member States’ experts in sufficient time to prepare. The conclusions drawn from the discussions in meetings with experts designated by Member States will be recorded in the minutes of the meetings. Additionally, the Agreement provides that Council and Parliament’s experts shall have access to the meetings of Commission expert groups to which Member States’ experts are invited and which concern the preparation of delegated acts. The preparation and drawing-up of delegated acts may also include consultations with stakeholders. The institutions will set up a joint functional register of delegated acts by the end of 2017.

As regards measures on the coordination of the legislative process, the Agreement contains a general commitment to “ensure the transparency of legislative procedures (…) including an appropriate handling of trilateral negotiations”. However, there is no mention whatsoever of what an “appropriate handling” means. Given the importance of trilogues in the legislative procedure, this wording is rather weak. As a result, closed-door meetings will continue to be the common practice of the co-legislators, which have bluntly stated that they will facilitate regular mutual “informal exchanges of view and information” in the context of the legislative process.

Whilst providing that the institutions will identify ways to facilitate the traceability of the various steps in the legislative process with a view to establishing a joint database on the state of play of legislative files, the agreement does not include any specific measure on how they will ensure a better understanding of the course of the negotiations leading to final decisions. It seems reasonable to assume that most EU legislation will thus continue to be hammered out in closed-door trilogues.

José Antonio Campos

D.2 Adoption of Regulation 2016/646 on the control of car emissions, OJ 2016, L 109 p.1.

This rather technical regulation introduces two new elements, on nitrogen oxide (NOx) emissions and on the type-approval procedure.

As regards NOx emissions, Regulation 715/2007 and Commission Regulation 692/2008 had fixed the maximum permitted NOx emission at 80 mg/km. Since 2007, though, these emissions were measured during laboratory testing. In Regulation 2016/646, the Commission now states “emissions generated by real driving of EU 5/6 vehicles on the road substantially exceed the emissions measured on the regulatory new European driving cycle (NEDC), in particular with respect to NOx emissions of diesel cars”. The EU thus is introducing a test for real driving conditions (RDE). In order not to request too drastic changes from the car manufacturers, Regulation 2016/646 therefore provides that the RDE should be applicable as of 2019 only. And from then onwards, for a period of one year and four months, a car which emitted 170 mg/km of NOx should, at the request of the manufacturer, still be considered to be in compliance with Regulation 715/2007. Afterwards, a car should be considered to be in compliance when it emits no more than 120 mg/km of NOx. These figures might be adapted later.

This decision, to bluntly set aside the applicable emission limit values by conceding tolerances in the measuring methods, is well hidden in the language of Regulation 2016/646: The limit of 170 mg/km is expressed as “2,1” deviation”, the limit of 120 mg/km as “1+ margin with margin = 0,5”. This is a model for drafting legislation in an incomprehensible way. And in substance, there was no technical necessity to adopt such large tolerances. The decision on their introduction was rather a concession to the car industry. Legislation in the USA, where the NOx emission limits for cars are considerably lower, demonstrates that the respect of the Euro 6 limits is possible without such generous margins of tolerance.

The second element is more positive. In the past, a car manufacturer who wanted to obtain a type approval for a new car had to transmit to the national public authority which was responsible for granting the type approval, a documentation folder, in which he demonstrated (by test results in particular) that the type to be approved was in all aspects in compliance with EU legislation on cars. However, EU legislation did not provide that this folder had to contain information on the software which the car manufacturer applied in the car. The Volkswagen company had used this “lacunae” to use a software which allowed it to manipulate the results of NOx emissions of its diesel cars.

Regulation 2016/646 now provides – in the new paragraphs 11 and 12 which are inserted into Article 5 of Regulation 692/2008 – that the car manufacturer also has to hand over to the public authority an “extended documentation package” in which all the software is identified and described which is used or which is capable of influencing car emissions, in normal or in exceptional circumstances. This means that the public authorities will, in future, be able to check whether a car manufacturer intends to use software which manipulates the car emissions – as Volkswagen had done with over 11 million cars worldwide. It can only be hoped that this amendment makes frauds such as those committed by Volkswagen impossible.

The amendments mentioned go far beyond the measures necessary to adapt legislation to scientific or technical progress. Parts of the European Parliament therefore considered that the Regulation should not have been adopted by comitology but by the ordinary procedure, where the European Parliament is co-legislator. However, the plenary of the Parliament differed. The issue might thus be brought before the European Court of Justice – provided, the Parliament does not oppose such a step for political reasons.

Ludwig Kramer

D.3 Report on the implementation and application of Directive 2004/35 on environmental liability between 2007 and 2013, COM(2016) 204

The Commission published a report on the application of Directive 2004/35 between 2007 and 2013. This report is completed by a long, but very informative study on the evaluation of the Directive (REFIT), see SWD (2016) 121. The Commission report is essentially based on Member States’ reports and on a number of studies which the Commission undertook.

The Commission reported that it was informed of a total of 1245 cases where Directive 2004/35 was applied. Hungary (563 cases) and Poland (506 cases) reported most, whereas the Czech Republic, Denmark, France, Luxemburg, Netherlands, Slovenia and Slovakia reported that there had been no cases. This is also due to the fact that in many Member States, pre-existing national law is applied, without use of Directive 2004/35. For example, a case in the Netherlands (Moerdijk) with soil and water pollution caused damage of 64.5 million euro. However, the case was “solved” by exclusively recurring to national Dutch law.

50 per cent of the reported cases concerned land damage, 30 per cent water damage and 20 per cent damage to biodiversity. The main activities involved waste management, treatment of dangerous substances, industrial emissions and transport. Individual citizens and environmental organisations requested administrative action in 132 cases, 93 of them having taken place in Italy. 60 of the 1245 cases went to court (44 in Poland alone).

The Commission stated that there was a considerable data gap on incidents which came under the Directive and comparable incidents which were treated under national law, as Member States did not report on the second category of cases. It also found that there were large differences on key notions of the Directive. In particular, there were different interpretations as regards the “significance” of a damage which triggers the application of the Directive’s provisions. This was of particular importance when it had to be assessed, whether there was an imminent threat to environmental damage, as it was difficult to assess beforehand, whether such future damage would be significant or not.

The Commission did not see a necessity to amend the Directive. It suggested issuing guidance documents or interpretative notices to Member States, promoting training on the application of the Directive and installing a helpdesk for practitioners to give them assistance and support. It invited Member States to also take such actions and, in particular, to improve the data collection on incidents.

Ludwig Kramer

D.4 Report on the evaluation of Directive 2000/59 on port-reception facilities for ship-generated waste and cargo residues (REFIT), COM(2016) 168.

The Commission indicated that until 2018 it wanted to have a zero-discharge of waste into the seas1. The report, though, clarified that this delay will not be respected.

The report indicated that about 45 per cent of all oil discharges to the sea stem from ship discharges. 20 per cent of marine litter is of ship-based origin and 40 to 50 litres of sewage are generated per ship passenger per day. The report did not give an estimation of how much of waste generated on board of ships is actually delivered to port reception facilities. However, it indicated that the quantities of waste delivered to port facilities doubled between 2004 and 2013; the delivery of sewage remained stable and the delivery of oily waste showed a falling tendency; discharges into the sea of oil also diminished during the examined period. The report thus saw some effect of the Directive.

The report indicated that some EU ports exempt sewage from the obligation of delivery and that, overall, the application of the Directive was uneven within the EU. Also, the Directive was not fully in line with MARPOL requirements for ships. And some terms of the Directive were differently interpreted by Member States. The report did not discuss the indirect payment obligations of ships which consists in having to pay the fees for delivery, even when the port facility was not used. A three-year pilot test of this approach in the North Sea some years ago had resulted in a strong reduction of waste discharges to the sea. When such indirect fees are significantly higher than the port fees, there is a strong incentive to use the port facilities. The report, though, only stated that stakeholders considered the port fees too high.

The Commission announced that it would, in the short term, develop a common monitoring and information system and issue guidelines on the Directive. In the long term, it would propose legislative amendments, without disclosing what it envisages. It did not comment on the objective to stop all discharge into the sea of ship-generated waste by 2018.

Ludwig Kramer

1See also Commission, COM(2009)8, pp.2 and 6: “the main strategy goals for the European maritime transport system up to 2018 [shall be: ] The Commission, Member States and the European maritime industry should work together towards the long-term objective of ‘zero-waste, zero-emissions’ maritime transport”.

D.5 8th report on the implementation status and the programmes for implementation of Directive 91/271 on urban waste water, COM(2016) 105

The Commission report gives the data for the year 2012. Sufficient data from Italy, Poland and Croatia were not available, so that the report only covers the status of implementation of 25 Member States.

Between 2007 and 2013, 17.8 billion euro were invested in urban waste water projects. In 12 Member States, the compliance rate for collection systems is 100 per cent. Bulgaria and Slovenia, in contrast, have a compliance rate below 60 per cent. As regards secondary treatment of waste water, 16 Member States reached between 90 and 100 percent of compliance. Cyprus, the Czech Republic, Spain, France and Portugal have a rate of 50 to 90 per cent, and Bulgaria, Romania, Slovenia and Malta of less than 50 per cent.

75 percent of the EU territory is classified as a “sensitive” area, where tertiary waste water treatment is required. 12 Member States reach, in this regard, a compliance rate of 90 to 100 per cent, 4 Member States (Czech Republic, Hungary, Belgium, Estonia, Sweden, Portugal) a rate between 50 and 90 per cent and 9 Member States (Bulgaria, Latvia, Ireland, Romania, Slovenia, Spain, Luxemburg, Slovakia and Malta) are below 50 per cent. 14 of the 28 EU capitals are now in compliance – not a very impressive figure, 25 years after the adoption of Directive 91/271.

The report pointed out that generally, the Member States which joined the EU since 2004, are lagging behind. Full compliance with the Directive will require a supplementary investment of 22 billion euro.

Ludwig Kramer

D.6 Commission Implementing Regulation 2016/1056 on Glyphosate, OJ 2016, L 173 p.52

EU Member States are of different opinions on the question of whether the pesticide glyphosate is carcinogenic. The relevant comitology committee did not reach a final opinion on this question. As the authorisation for glyphosate expired on 30 June 2016, the Commission adopted the Implementing Regulation 2016/1056, prolonging the authorisation for glyphosate until either 17 December 2017 or six months after the receipt by the Commission of the opinion of the Committee on Risk Assessment, established under the European Chemical Agency ECHA, whichever date is earlier.

Ludwig Kramer

D.7 Commission Communication: Delivering the benefits of EU environmental policies through a regular Environmental Implementation Review. COM(2016) 316

The Communication provides for a commitment of the Commission to improve the implementation of EU environmental legislation. The Communication, which was apparently generated without an impact assessment, identified as the main causes of poor implementation the lack of human capacity at national, regional and local level of the Member States, insufficient data and evidence, lack of skills and weak or inefficient sanctions.

The Commission announces that the regular Environmental Implementation Review (EIR) will consist of two parts. In a first part, the Commission would elaborate country-specific reports every two years. These reports would cover, on the one hand, thematic areas such as circular economy, resource efficiency, waste management, air and water quality, biodiversity etc, and, on the other hand, the national enabling framework and the available implementation tools. Draft reports would be discussed with the Member State in question, then adopted by the Commission and made public.

In a second part, the Commission would initiate high-level discussions in Council on significant implementation gaps that were common to several Member States. For that purpose, the Commission might elaborate specific issue papers on topics that are relevant to several member States. The European Parliament and the Committee of the Regions would be involved in the discussions or regularly kept up to date.

For the second round or the country-specific reports, the Commission would report on progress achieved with the EIR. It would promote the exchange of good Member State practices and try to find systemic solutions for problems.

The Communication does not indicate when the EIR initiative will start. Producing 27 (28) country-specific reports every two years which cover the full range of EU environmental law will be a huge task and the Commission is hardly equipped for that. As the Communication underlines that no new reporting requirements for Member States will flow from this initiative, it must be feared that the main attention will be concentrated on the formal transposition of EU environmental legislation and much less emphasis on its practical application of EU environmental law.

Environmental organisations, citizens initiatives and local groups know best about the application of environmental provisions in practice. The Communication does not lose one word on public participation in EIR, but treats the whole matter of environmental law application as an issue for public authorities alone. This Commission approach was wrong in the past, but there is no sign that the Commission intends to change its approach: when will it learn that citizens in the EU are not just subjects who should admire the conclusions of the EU bureaucracy, but are individuals, voters, citizens who need to participate in the res publica Europea? It is not enough to allow elections to take place every four years, and the ever-decreasing participation in such elections is evidence for that. The EU managed to largely kill the citizens legislative initiative (Article 11 TEU) and the Commission largely disregards its obligation to allow citizen participation in plans and programmes: the EIR is a good example, as this initiative might be seen as a plan or a programme, but no participation of NGOs was ensured before the adoption of the Communication. The Commission knows best what is good for the European environment!

Ludwig Kramer

D.8 Commission Communication on endocrine disruptors and the draft Commission acts setting scientific criteria for their determination in the context of the EU legislation on plant protection products and biocidal products. COM(2016) 350 of 15 June 2016.

European Parliament Resolution of 8 June 2016 on endocrine disruptors, P8_TA-PROV(2016)0270.

According to Article 5(3) of Regulation 528/2012, the Commission had to adopt, by the latest in December 2013, delegated acts concerning scientific criteria for determining endocrine disruptors. As the Commission did not adopt such acts, Sweden brought, under Article 265 TFEU, the matter before the General Court which decided, in December 2015, that the Commission had failed to comply with its obligation to adopt delegated acts on endocrine disruptors (case T-521/14).

The present Communication does not constitute the delegated act which was required. Rather, it is on endocrine disruptors generally. It contains the scientific criteria which the Commission considers appropriate to be applied in the context of the pesticide Regulation (Regulation 1107/2009) and the Regulation on biocidal products (Regulation 528/2012). Apparently, the Commission wants first to obtain the comments of the Member States, the European Parliament and the scientific community, before adopting legally binding provisions.

Before the Commission made this Communication, the European Parliament had, on 8 June 2016, adopted a resolution on endocrine disruptors in which it was very critical towards the Commission. It stated that it was “absolutely unacceptable for the Commission, as guardian of the Treaties, not to comply with the Treaties” and “condemns” the Commission for its failure to act and to disregard Article 266 TFEU.

The EU Treaties do not provide for any sanction in cases that the Commission does not comply with its obligations. A provision similar to Article 260 TFEU, which allows the Court to fix financial sanctions against Member States, does not exist. Even when the Commission continues to disregard the judgment in case T-521/14, it remains free from sanctions. The only possibility which the European Parliament has would be a motion of censure against the Commission (Article234 TFEU), for which a two-third majority is needed.

Ludwig Kramer

European Parliament

D.9 Resolution of 28 April 2016 on public access to documents for the years 2014-2015, P8_TA-PROV (2016) 0202; A8-0141/2016

The European Parliament (EP) adopted a Resolution on public access to documents which takes up, in fact, numerous requests which ClientEarth had already made on other occasions. Not all of the 47 sections of the Resolution can be commented upon here.

The EP notes with concern that previous recommendations which it had made frequently were not followed by the Council or the Commission. In particular, its request to have a transparency officer appointed in each of the institutions, had found no echo (no.1).

According to the EP, the Council and the Commission are still reluctant to give full access to documents and ignore in their attitude the amendments which the Lisbon Treaties and the Charter on Fundamental Rights had brought to the issue of transparency. Numerous documents are over-classified (no.10); Council documents regarding its working groups do not comply with the European Court of Justice’s comments in the Turco case (no.12). In environmental cases, Regulation 1367/2006 should be fully applied (no.13). Regulation 1049/2001 on access to documents is in strong need of being updated. The EP also regrets that so little progress was achieved in setting up public registers.

As regards trilogue meetings between the European Parliament, the Council and the Commission, the EP pleads for full transparency of all documents that are generated during this process (no.21ss.) At present, citizens are not able to follow the trilogue process, whereas powerful vested interest groups have easier access to trilogue documents (no.25). In the same way, documents from the comitology procedure should be publicly available, as this procedure is the basis of a considerable amount of legislation (no.32). Likewise, the documents of international negotiations should, in principle, be made available to the public (no.33). Letters of formal notice and reasoned opinions which the Commission sends out to Member States should also be publicly available, in order to properly inform citizens (n.37). This applies to the execution of Court judgments, too. Finally, negotiations and decisions under the different EU fund systems should be open to public scrutiny.

The European Parliament reminds the other institutions that transparency is the core of a democratic society and is a very efficient way to make citizens participate and remain interested in the issues which are discussed by their elected or appointed representatives.

Ludwig Kramer

D.10 Resolution and draft proposal for a regulation of 9 June 2016 on an open, efficient and independent European Union administration, P8-TA-PROV(2016)0279

The European Parliament and the European Ombudsman had invited, in 2000/2001, the Commission to adopt provisions on administrative procedures. In the absence of any follow-up from the side of the Commission, the European Parliament has now submitted a draft regulation of the European Parliament and the Council on an open, efficient and independent European Union administration. The draft is based on Article 298 TFEU and Article 41 of the Charter on Fundamental Rights. It deals with “procedural rules which shall govern the administrative activities of the Union’s administration” and underlines the citizens’ right to a good administration (Article 1). The regulation shall not apply to legislative and judicial procedures, included delegated or implementing acts and shall not apply to Member States’ administration. In 30 articles, the procedural steps, including for example the right to be heard, the right to obtain a justification of the measure, the right to have an internal review etc, are laid down.

The European Parliament does not have the right to initiate legislation. It may request that the Commission make a legislative proposal. However, the Commission only has to inform the Parliament of its reasons when it does not follow its proposal (Article 225 TFEU). Whether the Commission will take up Parliament’s proposal, is thus not certain.

D.11 Regulation 2016/679 of the European Parliament and the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation. OJ 2016, L 119 p.1.

Data protection within the Union is regulated by Directive 95/46. The present Regulation, based on Article 16 TFEU and adopted after five years of legislative discussions, will replace Directive 95/46 as of May 2018. As it will apply throughout the Union and will also cover the new worldwide developments in technology, it is quite comprehensive, containing 173 Recitals and 99 Articles.

The Regulation concerns “the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data” (Article 1). It addresses, among many other things, the personal data of children (Article 8), the right to be forgotten (Article 17) and the requirement to make, in certain circumstances, a data protection impact assessment (Article 35). Member States shall set up a data protection supervisory authority (Article 51). At EU level, a Data Protection Board is established, where all Member States are represented (Article 68). The misuse of personal data shall be punishable by administrative fines (Article 83) which may reach 20 million euro or, for an undertaking, up to four per cent of its total worldwide annual turnover.

Ludwig Kramer

D.12 Special Report 3/2016: Combating eutrophication in the Baltic Sea: further and more effective action needed

The Court of Auditors examined the measures taken by the Commission and the EU Member States bordering the Baltic Sea – Denmark, Germany, Finland, Sweden, Latvia, Lithuania, Estonia, Poland – in order to reduce the eutrophication of the Baltic Sea. This eutrophication mainly stems from urban waste water and from agricultural activities. Between 2007 and 2013, the EU spent, for the eight Baltic-bordering States, 4.6 billion euro for measures concerning urban waste water (3.4 billion went to Poland), and 9.9 billion euro for agricultural activities (this last figure also includes other measures).

The Court of Auditors found that the EU measure had led to limited progress towards nutrient reductions in the Baltic Sea, which remained, nevertheless, one of the most polluted oceans in the world. The river basin management plans (RBMP) which Member States had to draw up under the Water Framework Directive (2000/60), also had to deal with nutrients. However, they lacked ambition, only provided for basic measures and focused less on the diffuse sources of pollution from agricultural activities. The full implementation of the urban waste water Directive (91/271) was delayed in Poland, Estonia, Latvia and Lithuania, and the Commission had not been following up implementation in time. The implementation of the nitrates Directive (91/676) was not fully effective; its level of non-compliance was relatively high and Member States had not made compulsory the taking of measures to reduce nutrient discharges, in particular for farms that were located in sensitive areas. The payment of sums to farmers under the cross-compliance system of the EU agricultural policy – farmers receive financial support, when they comply with EU environmental legislation – only had limited success.

The Commission accepted almost all of the Court’s recommendations for improving the effectiveness of EU measures. It mainly blamed Member States for the insufficient effectiveness of the fight against eutrophication. It also pointed out, though, that the cross-compliance system “is not a mechanism to enforce the European environmental legislation but aims inter alia ‘to make the Common Agricultural Policy more compatible with the expectation of society'”. This is an astonishing statement: what else does society expect than the compliance of farmers with existing environmental legislation? The Commission’s statement, however, illustrates well the tensions between EU environmental and agricultural policies.

What matters at the end in the present case is the reduction of eutrophication of the Baltic Sea. In this regard, there is consensus between the Court of Auditors and the Commission that the EU could do better.

Ludwig Kramer