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II. SURVEYING THE STATE OF EU ENVIRONMENTAL LAW: MUCH BARK WITH LITTLE BITE?

Published online by Cambridge University Press:  31 October 2013

Suzanne Kingston
Suzanne Kingston*
Affiliation:
Senior Lecturer in Law, University College, Dublin, [email protected].
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Extract

In the three years since last surveyed in the Quarterly,1 EU environmental law has continued to justify its reputation as one of the most fast-moving fields of EU law, with a large number of highly significant legislative and jurisprudential developments. This review selects some of the most important areas of development in the field in recent years: in particular, the EU's new environmental action programme for 2013–20, EU climate and energy law, environmental governance and enforcement, and integration of environmental concerns into other EU policy areas.

Type
Current Developments: European Union Law
Information
International & Comparative Law Quarterly , Volume 62 , Issue 4 , October 2013 , pp. 965 - 982
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 Kingston, S (2010) 59 ICLQ 1129CrossRefGoogle Scholar.

2 European Commission, Proposal for a Decision of the European Parliament and of the Council on a General Union Environment Action Programme to 2020, ‘Living Well, within the Limits of Our Planet’ COM (2012) 710, at recital 4 to the Preamble.

3 See Commission Press Release, MEMO/13/591 of 20 June 2013.

4 Commission Communication, ‘Roadmap to a Resource Efficient Europe’ COM (2011) 571; Commission Communication, ‘A Resource Efficient-Europe: Flagship Initiative under the Europe 2020 Strategy’ COM (2011) 21.

5 Commission Communication, ‘Our Life Insurance, Our Natural Capital: An EU Biodiversity Strategy to 2020’ COM (2011) 244.

6 See European Environment Bureau, ‘Europe Adopts a New Plan to ‘‘Live Well, within the Limits of Our Planet’’’, 20 June 2013, available at <http://www.eeb.org/index.cfm/news-events/> accessed 25 July 2013.

7 See Scott, J and Rajamani, L, ‘EU Climate Change Unilateralism’ (2012) 23(2) EJIL 469CrossRefGoogle Scholar.

8 See further, Rajamani, L, ‘The Durban Platform for Enhanced Action and the Future of the Climate Regime’ (2012) 61 ICLQ 501CrossRefGoogle Scholar. The rules for the second commitment period of Kyoto were agreed upon at the subsequent COP, COP 18, at Doha in 2012.

9 See Presidency Conclusions of the Council of the EU, 13 February 2009, 17271/1/08. The EU is generally thought to be on course for meeting these objectives. See further the Technical Report No 8/2013 of the European Environment Agency to the UNFCCC, ‘Annual European Union Greenhouse Gas Inventory 1990–2011 and Inventory Report 2013’, showing that, in 2011, the EU's total GHG emissions were 18.4 per cent below 1990 levels, although this excludes emissions from aviation. In 2013, the Commission published a Green Paper setting out its first thoughts on the successor to the 20-20-20 targets (and accompanying strategies), which would steer its climate and energy policies up to 2030: Commission Green Paper, ‘A 2030 Framework for Climate and Energy Policies COM (2013)’ 169.

10 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC OJ 2003 L 275/23.

11 Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community OJ 2009 L 140/63.

12 Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020 OJ 2009 L 140/136.

13 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC OJ 2009 L 140/16.

14 Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 OJ 2009 L 140/114.

15 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control OJ 2008 L 24/8 (now replaced by Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) OJ 2010 L 334/17).

16 See further Kingston (n 1) 1132–3.

17 See arts 10, 10a and 10c of the EU ETS Directive, as amended.

18 See Annex I of the EU ETS Directive, as amended.

19 See art 13 of the EU ETS Directive, as amended.

20 See art 11a of the EU ETS Directive, as amended.

21 See art 10(2) of the EU ETS Directive, as amended.

22 Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community OJ 2008 L 8/3.

23 See Commission Proposal to Amend Regulation 1031/2010 in particular to determine the volume of greenhouse gas emissions allowances to be auctioned in 2013–20, available at <http://ec.europa.eu/clima/policies/ets> accessed 25 July 2013.

24 See draft Commission Regulation on determining international credit entitlements pursuant to Directive 2003/87/EC of the European Parliament and of the Council, 5 June 2013, available at <http://ec.europa.eu/clima/policies/ets> accessed 25 July 2013. The draft Regulation was approved by the EU's Climate Change Committee on 10 July 2013.

25 A list of sectors exposed to significant risk of carbon leakage was drawn up in 2009, and has been amended multiple times since, upon a proposal from the Commission and approval of the EU Climate Change Committee, and in the absence of objection from the Council and European Parliament within three months. The Commission is obliged to draw up a new list every five years: art 10a(13), ETS Directive.

26 See the Commission Communication Guidelines on certain State aid measures in the context of the greenhouse gas emission allowance trading scheme post-2012, SWD (2012)

131.

27 See Europol Press Release, ‘Further Investigations into VAT Fraud Linked to the Carbon Emissions Trading System, 28 December 2010.

28 See eg J Chaffin, ‘Cyber-Theft Halts EU Emissions Trading’, Financial Times, 19 January 2011.

29 Case T-317/12 Holcim Romania, pending.

30 Kingston (n 1) 1133.

31 See eg Case T-183/07 Poland v Commission [2009] ECR II-3395 (Commission reduction of industry emission caps by 26.7 per cent annulled—appeal to CJEU dismissed March 2012 in Case C-504/09 P); Case T-263/07 Estonia v Commission [2009] ECR II-3463 (Commission reduction of industry emission caps by 47.8 per cent annulled—appeal to CJEU dismissed March 2012 in Case C-505/09 P); see also cases brought in relation to Bulgaria (T-499/07 OJ 2010 C 246/39), Romania (T-484/07 OJ 2012 C 258/27), Lithuania (T-368/07 OJ 2011 C 340/32), Latvia (T-369/07 [2011] ECR II-1039), Hungary (T-221/07 OJ 2013 C 171/40).

32 Some earlier cases are, however, clearly still relevant: see, for instance, Case C-524/09 Ville de Lyon [2010] ECR I-4115, where the Fourth Chamber of the CJEU rejected, on confidentiality grounds, the claim that an administrator of a national registry of ETS allowances should be obliged to give out details of ETS trading data, account holders and the like in the medium term after completion of the relevant transactions.

33 Case T-370/11 Poland v Commission [2013] ECR II-0000. See also the pending cases C-566/11, 580/11, 620/11 and 640/11 (preliminary references from Spanish courts on the interpretation of art 10 of the ETS Directive); C-203/12 (Swedish reference on the circumstances in which a penalty must be imposed where the operator's failure to surrender was accidental) and T-317/12 Holcim Romania (non-contractual liability of the EU for theft of carbon allowances).

34 Case T-370/11 Poland v Commission ibid, paras 52–53.

35 Case C-366/10 ATA [2011] ECR I-0000.

36 ibid, para 127.

37 ibid, para 128.

38 ibid, para 72.

39 ibid, para 145.

40 Gattini, A, ‘Between Splendid Isolation and Tentative Imperialism: The EU's Extension of Its Emission Trading Scheme to International Aviation and the ECJ's Judgment in the ATA Case’ (2012) 61 ICLQ 977CrossRefGoogle Scholar.

41 See Council Press Release of 22 April 2013 8621/13.

42 See the resolution of the International Air Transport Association at its sixty-ninth annual general meeting, backing a single carbon offsetting scheme (but not a cap-and-trade scheme) for its emissions from 2021, available at <http://www.iata.org> accessed 25 July 2013.

43 See ENDS Europe, ‘EU Low-Lost Airlines to Challenge ETS Exemption’, 20 February 2013.

44 RES directive (n 13) art 3. See also art 7d(6) of the Fuel Quality Directive, Directive 2009/30/EC OJ 2009 L 140/88, which introduced the mandatory target of achieving by 2020 a 6 per cent reduction in the greenhouse gas intensity of fuels used in road transport and non-road mobile machinery.

45 RES Directive, art 3(5).

46 ibid, art 6.

47 ibid, arts 7–10.

48 ibid, art 11.

49 See, in relation to electricity, the most recent Directive, Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC OJ 2009 L 211/55.

50 COM (2011) 31, 5.

51 See Switzer, S and McMahon, J, ‘EU Biofuels Policy: Raising the Question of WTO Compatibility (2011) 60(3) ICLQ 713CrossRefGoogle Scholar.

52 Proposal for a Directive of the European Parliament and the Council amending Directive 98/70/EC and Directive 2009/28/EC, COM (2012) 595.

53 Joined Cases C-204/12 to 208/12, pending.

54 Opinion, para 103.

55 Case C-379/98 [2001] ECR I-2099.

56 Opinion, para 102.

57 Case C-252/12, Opinion of 11 July 2013.

58 ibid, para 50.

59 ibid, para 67.

60 Case C-279/08 Commission v Netherlands [2011] ECR I-7671.

61 Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants OJ 2001 L 309/22. See further Kingston, S, Greening EU Competition Law and Policy (Cambridge University Press 2011)CrossRefGoogle Scholar ch 12.

62 OJ 2008 C 82/1.

63 COM (2011) 109. The Plan takes its place alongside a raft of rather aspirational policy documents, looking beyond 2020 targets, released by the Commission in 2011: see Commission Communication, ‘Roadmap to a Resource Efficient Europe’ COM (2011) 571, a policy document outlining plans how the EU economy can be made sustainable by 2050, and Commission Communication, ‘Roadmap for Moving to a Competitive Low Carbon Economy in 2050' COM (2011) 112.

64 Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC OJ 2012 L 315/1.

65 Art 3.

66 Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings OJ 2010 L 153/13.

67 Art 7.

68 COM (1992) 226.

69 Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity OJ 2003 L 283/51.

70 COM (2011) 169.

71 See Council of the EU, Irish Presidency Note, ‘Energy Taxation Directive: State of Play’, 12 June 2013, 10825/13.

72 COM (2013) 216. See also, Conclusions of the Council of the EU of 18 June 2013, 11151/13, emphasizing the importance of private sector initiatives such as insurance to deal with adaptation, and the importance of mainstreaming climate objectives within the EU budget.

73 Regulation (EU) No 525/2013 of the European Parliament and of the Council of 21 May 2013 on a mechanism for monitoring and reporting greenhouse gas emissions and for reporting other information at national and Union level relevant to climate change and repealing Decision No 280/2004/EC OJ 2013 L 165/13.

74 Decision No 529/2013/EU of the European Parliament and of the Council of 21 May 2013 on accounting rules on greenhouse gas emissions and removals resulting from activities relating to land use, land-use change and forestry and on information concerning actions relating to those activities OJ 2013 L 165/80.

75 COM (2013) 480.

76 COM (2013) 180.

77 Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 OJ 2009 L 1410/114.

78 See Commission Decision 2010/67/EU OJ 2010 L 290/39, establishing the NER300 programme. While 10 CCS projects were put forward in the first round, none was finally funded due largely to insufficient co-funding put forward by the Member States at issue. In one case, a CCS project was approved by the Commission/European Investment Bank, but was withdrawn at the last minute by its backers (relating to the Ultra Low CO2 Steelmaking CCS project in Florange, France).

79 Namely, a project being put forward by the UK (the White Rose project in Yorkshire, run by Drax).

80 For an overview of the current state of the environment within Europe, see the European Environment Agency, The European Environment: State and Outlook 2010 (EEA 2010) Synthesis Report.

81 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

82 COM (2012) 95 (the ‘2012 Communication’). See also the 2008 Communication on improving implementation of EU environmental law, COM (2008) 773.

83 See similarly priority objective 5 of the Seventh EAP.

84 Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in Member States OJ L 118/41.

85 See further Kingston, S, ‘Mind the Gap: Difficulties in Enforcement and the Continuing Unfulfilled Promise of EU Environmental Law in Kingston, S (ed), European Perspectives on Environmental Law and Governance (Routledge 2012)Google Scholar.

86 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on Industrial Emissions (integrated pollution prevention and control) OJ 2010 L 334/17 (see art 16). See also, the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1013/2006 on shipments of waste COM (2013) 516, proposing harmonized inspection criteria in the field of waste shipments.

87 2012 Communication, 8. See also, the CJEU's line of case law reversing the burden of proof in cases of systemic breach of EU environmental law, on the basis, inter alia, that the Commission has no investigative powers of its own and therefore relies largely on national authorities to provide it with information on what is happening on the ground: Case C-301/10 Commission v UK [2012] ECR I-0000.

88 In particular, the IMPEL network <http://impel.eu/> accessed 25 July 2013.

89 See Commission Communication ‘A Europe of Results: Applying Community Law COM (2007) 502.

90 2012 Communication, 8; 2008 Commission Communication on Implementing Environmental Law COM (2008) 773.

91 See the Commission's Second Evaluation Report on the EU Pilot Scheme SEC (2011) 1629/2.

92 See similarly Kingston (n 85).

93 2012 Communication, 10.

94 ibid.

95 See eg his speech of 24 September 2012, SPEECH/12/635.

96 Ireland was the last EU Member State to ratify, on 20 June 2012.

97 2012 Communication, 11.

98 Namely, Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC OJ 2003 L 41/26 and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC OJ 2003 L 156/17.

99 COM (2003) 624.

100 Case C-240/09 Lesoochranárske zoskupenie [2011] ECR I-1255.

101 ibid, para 47.

102 ibid, paras 50–51.

103 Namely, Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen (Trianel) [2011] ECR I-3673 (German law restricting standing in EIA and IPPC matters to those environmental associations who can demonstrate impairment of rights is contrary to EIA/IPPC access to justice provisions).

104 Case C-260/11 Edwards [2013] ECR I-0000.

105 Case C-416/00 Križan [2013] ECR I-0000 (access to justice provisions of IPPC directive allow Member State discretion as to level of tribunal competent to regularize breach of access to information provisions, as long as principles of effectiveness and equivalence of remedies are respected).

106 Case C-420/11 Leth [2013] ECR I-0000 (failure to carry out EIA does not in principle in itself confer right to compensation on individual for pecuniary damage caused by decrease in value of property due to negative environmental effects).

107 Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus [2011] ECR I-0000 and Case C-182/10 Solvay [2012] ECR I-0000 (fact that approval for a project that would otherwise be subject to EIA was given by legislative measure cannot exclude EIA access to justice provisions).

108 Case C-260/11 Edwards [2013] ECR I-0000.

109 ibid, para 35.

110 ibid, para 46.

111 See eg Case C-72/12 Altrip OJ 2012 C 133/15 (whether EIA access to justice provisions require substantive and procedural review); Case C-530/11 Commission v UK OJ 2012 C 39/7.

112 See the 3173rd Environment Council conclusions of 11 June 2012; European Parliament resolution of 20 April 2012 2011/2194 (INI); 2012 Commission Communication (n 82).

113 See the Explanatory Memorandum of 28 June 2013, available at <http://ec.europa.eu/environment/consultations/access_justice_en.htm> accessed 25 July 2013.

114 See Case ACCC/C/2008/32, Findings and recommendations adopted on 14 April 2011.

115 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters to Community Institutions and Bodies OJ 2006 L 264/13.

116 Case T-338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission [2012] ECR II-0000.

117 Case C-405/12 P.

118 See further Kingston (n 1).

119 Speech of 20 June 2013, Edinburgh, SPEECH/13/554.

120 See, for instance, the Seventh EAP.

121 See Case C-28/09 Commission v Austria (Inn Valley) [2011] ECR I-0000.

122 See Commission Press Release, 26 June 2013, IP/13/613, and Press Release of the Irish Presidency, 26 June 2013, ‘Historical Day for the Common Agricultural Policy as Irish Presidency Steers European Institutions to Landmark Reform Deal’.

123 For instance, the principle that 30 per cent of direct payments to farmers under the first pillar should be granted only where certain environmental conditions (such as the creation of ecological focus areas) are satisfied is now subject to broad and numerous exceptions, and cross-compliance rules have been weakened (excluding, for instance, the requirement of compliance with the water framework directive and pesticides rules).

124 European Environment Agency, The European Environment: State and Outlook 2010 (EEA 2010)Google Scholar Synthesis Report, 18, Table 1.2.