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INTRODUCTION TO EU ENVIRONMENTAL LAW. OVERVIEW. ORIGINS OF EU LAW EUROPEAN INSTITUTIONS ENVIRONMENTAL DECISION-MAKING ENVIRONMENTAL COMPETENCES IMPLEMENTATION AND ENFORCEMENT. I. ORIGINS OF EU LAW. EU ENVIRONMENTAL LAW .

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Introduction to eu environmental law

INTRODUCTION TO EU ENVIRONMENTAL LAW


Overview
OVERVIEW

  • ORIGINS OF EU LAW

  • EUROPEAN INSTITUTIONS

  • ENVIRONMENTAL DECISION-MAKING

  • ENVIRONMENTAL COMPETENCES

  • IMPLEMENTATION AND ENFORCEMENT



Eu environmental law
EU ENVIRONMENTAL LAW

  • EU Environmental law is based on a particular administrative law framework

    • Rights, decision-making procedures, standing, implementation, enforcement = EU law based

  • The importance of legal culture in understanding EU environmental law


Origins
ORIGINS

  • Law-centered union

    • Treaty of Rome (1958)

    • Single European Act (1987)

    • Treaty of Maastricht (1992)

    • Constitutional Treaty (2004 - failed)

    • Treaty of Lisbon (2009)

  • From simple €€€ rights to social rights


Treaty of lisbon
Treaty of Lisbon

  • Treatyof the European Union (TEU)

  • Treatyof the Functioningof the EU (TFEU)

  • Charter



A sui generis type of union
A sui generis type of union

  • Key Institutions:

    • European Council

    • Council

    • Commission

    • Parliament

    • EU Courts (General Court and Court of Justice)

  • Institutional cooperation and balance







  • Who brings the cases
    WHO BRINGS THE CASES?

    Pre-Lisbon: Art 230(4) EC

    ‘Any natural or legal person, may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’


    Key case law
    KEY CASE LAW

    • T-585/93 Greenpeace v Commission

    • T-219/95 Danielssonv Commission

    • C-50/00 UPA

      • AG Jacobs

    • T-177/01 Jégo


    Winds of change
    WINDS OF CHANGE?

    Post-Lisbon: Art 263(4) TFEU

    ‘Any natural or legal person may…institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’


    Jurisprudential definitions
    JURISPRUDENTIAL DEFINITIONS

    • ‘REGULATORY ACT’:

      • T-18/10 Inuit v Commission

    • ‘IMPLEMENTING MEASURES’

      • T-16/04 Arcelorv Parliament and the Council


    Rhus convention
    ÅRHUS CONVENTION

    • Dir 2003/35/EC access to justice

      • Art 9(2), (4) of Convention

    • Dir 2003/4/EC access to information

    • Regulation 1367/2006

      • Judicial review provisions


    Court access via national courts
    COURT ACCESS VIA NATIONAL COURTS

    • C-263/08 Djurgården

      • ‘wide access to justice’

      • Render EU law effective

    • C-115/09 Trianel

    • C-240/09 LesoochranarskeZoskupenie



    Eu environmental laws
    EU ENVIRONMENTAL LAWS

    • Primary

      • Treaty of the EU

      • Treaty of the Functioning of the EU

      • Charter

    • Secondary

      • Regulation

      • Directive

      • Decision

      • Recommendations



    Effect of eu environmental law
    EFFECT OF EU ENVIRONMENTAL LAW

    • SUPERMACY

      • 6/64 Costa vEnel

        • …the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question

      • 11/70 Int. Handelsgesellschaft


    Effect of eu environmental law1
    EFFECT OF EU ENVIRONMENTAL LAW

    • DIRECT EFFECT

      • C-26/62 Van Gend den Loos

        • ‘The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subject of which compromise not only member states but also their nationals. Independently of the legislation of Member States, Community (today EU) law may therefore not only impose obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.’

      • FRANKOVICH – PRINCIPLE



    Why do competences matter
    WHY DO COMPETENCES MATTER?

    THE PRINCIPLE OF CONFERRED POWERS:

    • Art 13 TEU: ‘Each institution shall act within the limits of the powers conferred by the Treaty’

  • LEVEL OF PROTECTION (TO HARMONISE OR NOT TO HARMONISE)

  • DECISION-MAKING PROCESS


  • Environmental legal basis title xx
    ENVIRONMENTAL LEGAL BASIS: TITLE XX

    • ARTICLE 191 TFEU

      • Objectives (NB ‘climate change’), principles, policies, harmonisation, external relations

    • ARTICLE 192 TFEU

      • Ordinary legislative procedure

      • Derogations from art. 289 TFEU

      • Implementation


    External competences
    EXTERNAL COMPETENCES

    • Art 191 (4) TFEU

      • Cooperate with 3rd countries/int. organisations

      • NB: Art 191(4) ‘without prejudice to Member States’ competence to negotiate in int. bodies and to conclude international agreements’

      • Mixed agreements

      • IMPLICIT: case law

    • Art 2 (d) and (f) TEU


    Harmonisation
    HARMONISATION

    General rule:

    • As long as national laws haven’t been harmonised, MS are free to pursue any environmental policy of their own, under the condition that the provisions do not breach the Treaty

    • Art 193 TFEU

      Total harmonisationv minimal harmonisation

  • Case C-329/95 VAG Sverige AB



  • Environmental principles in eu law
    ENVIRONMENTAL PRINCIPLES IN EU LAW

    • Art 191(2) TFEU

      • Precautionary principle

      • Prevention principle

      • Ratification at source

      • Polluter pays

    • Sustainable development

    • Subsidiarity principle

    • Integration principle


    Precautionary principle
    PRECAUTIONARY PRINCIPLE

    • Justifies legal action also in cases of lack of causality according to:

      • ‘available scientific and technical data’

    • C-121/07 Commission v France

      • ‘fundamental principle’ of env protection

  • T-74/00 Artegodanv Commission

    • ‘general principle of Community law’


  • Prevention principle
    PREVENTION PRINCIPLE

    • ‘Prevention is better than cure’

    • Dir 94/62 on packing waste

      RECTIFICATION AT SOURCE

    • Dir 2008/105 on water standards (end-of pipe regulation)

    • Wallon Waste case


    Polluter pays
    POLLUTER PAYS

    • 1stEnv Action Programme

    • Environmental protection versus ‘unburdened’ trade

    • Dir 2003/87 – state aid and polluter pays concerns


    Subsidiarity principle
    SUBSIDIARITY PRINCIPLE

    • Art. 3 TFEU – exclusive competence

    • Art. 4 TFEU – shared competence; incl. the environment

    • Art. 5 (3) TEU – subsidiarity

    • Art. 5 (4) TEU – proportionality


    Integration principle
    INTEGRATION PRINCIPLE

    • Art. 11 TFEU

      • ‘Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting Sustainable Development’

      • Chernobyl I case

    • Art. 37 Charter

      • Only re ‘Union policies’, and ‘a high level of environmental protection’


    Sustainable development
    SUSTAINABLE DEVELOPMENT

    • Brundtland Report Rio de Janeiro ’92

    • Codified in the Lisbon Treaty:

      • Art. 3(3) TEU

      • Art. 11 TFEU

      • Art. 37 Charter

    • C-371/98 First Corporate Shipping, AG Léger:

      • SD means ‘the necessary balance between various interests which sometimes clash, but which must be reconciled’



    Implementation
    IMPLEMENTATION

    • More than 200 EU environmental laws produced over the past 30 years - which require implementation?

    • Duty to implement:

      • Art. 192(4) TFEU

      • Art. 288 TFEU

      • Art. 4(3) TEU – duty of cooperation


    Implementation1
    IMPLEMENTATION

    • ‘Implementation deficit’

      • Political and practical aspects

      • national obligation

    • Innovation in implementation

      • Criminal law

      • Direct effect

      • Administrative methods

    • Innovation in regulatory methods


    Enforcement
    ENFORCEMENT

    • Obligation on the MS

    • Commission as the ‘guardian of the Treaties’

      • Art. 258 TFEU

        • Infringement – duty to take necessary steps to comply with the judgment

        • Financial sanctions

          • C-387/97 Commission v Greece

      • Art. 260(3) TFEU



    Summery
    SUMMERY

    • EU environmental law is based on an administrative law framework

    • Importance of legal culture:

      • Intersections between environmental law, the internal market, and the court

      • Explains why we regulate

    • Challenges of EU environmental law


    Possible sources for research
    POSSIBLE SOURCES FOR RESEARCH

    • JOURNALS

      • Journal of Environmental Law

      • European Environmental Law Review

      • RECIEL

      • Yearbook of European Environmental Law

      • European Energy and Environmental Law Review

    • COMMISSION WEBSITE

    • http://curia.europa.eu

    • SSRN

    • googlescholar.com


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