European Environmental Law

1. European Environmental Law Lectures at Lomonossow University , Moscow 21-25 April, 2013 Professor Gerd Winter University of Bremen, Germany

2. Overview • General issues • History • Competences • Principles • Instruments • Horizontal environmental law • Environmental Impact Assessment • Access to information • Participation in procedures • Access to justice • Liability for damage • Ecolabel, Ecoaudit • Ecodesign • Sectoral environmental law (examples) • U-Turn of energy policy: nuclear power, climate protection, renewables • Waste • Biotechnology

3. Introduction to EU Law • EU = Union of 25 Member States, soon 26 (Croatia) • Supranational organisation: • Powers to make law in certain policy areas • Law directly applicable in MS • State like separation of powers • Legislature: democratic election • Executive: mostly by MS, but more and more EU administration • Judicature: legal protection of citizens by MS and EU courts • Development from economic integration to (imperfect) social integration, including environmental protection • Recent crisis: economic integration through monetary union, but lack of margin for MS economic policy => crossroad more or less integration?

4. Sources for Studying EU Environmental Law • Textbooks • Ludwig Krämer, EU Environmental Law, 7th ed.2012 • Jan Jans, Hans Vedder, European Environmental Law 4th ed. 2012 • Legal acts: http://eur-lex.europa.eu/RECH_menu.do • Court decisions: http://curia.europa.eu/juris/recherche.jsf?

6. Tension release of capitalist energy – environmental stress • Internal market (basic freedoms of movement of products, labour, establishment, services, capital, 34, 45, 49, 56, 63) => increase of pollution from production, products, waste, transportation • Encouragement of construction of infrastructure (roads, ports, airports, 170, energy networks, 194); support for industrialisation of agriculture, 39 => loss of biodiversity

7. Two modes of environmental regulation • Negative integration: • environmental regulation by MS • EU check whether reasonable or disguised protectionism (eg Art. 34, 36 TFEU) • Decision taken by courts in treaty infringement procedure or individual claims • Eg product quality regulation (lead in gasoline) • Positive integration • Environmental regulation by EU („harmonisation“) (eg (Art 114 TFEU) • Opposing MS law set aside • Possibly power of MS to go further (Art. 114 V TFEU)

8. Case on negative integration • ECJ Case C-379/98 no. 68-81 Preussen Electra: feed-in right for electricity from renewables, guaranteed minimum price. Implicit exclusion of electricity from foreign sources. => Art. 34, but justified by 36 and rule of reason

9. EU compentences in environmental law • Art. 191/192 for environmentally damageable activities • MS can go further if measures are even more protective (Art. 193) • Art. 114 for environmentally damageable products • MS can go further if measures • Based on new scientific knowledge • Specific and new problem in the MS • Approval by EU Commission • Art. 11 Integration principle

10. EU compentences in environmental law • Art. 191/192 TFEU Art. 191: Union policy on the environment shall contribute to pursuit of the following objectives: — preserving, protecting and improving the quality of the environment, — protecting human health, — prudent and rational utilisation of natural resources, — promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. Art. 192: The European Parliament and the Council, acting in accordance with the ordinary legislative procedure […] shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.

11. Case on Art. 193 TFEU (see EuGH C-203/96 Dusseldorp Bremer Fabrikant F will Altöl aus seinen Maschinen an polnischen Verwertungsbetrieb V liefern. Behörde untersagt Verbringung, weil Altölverwertungsanlage in Bremen ausgelastet werden müsse und Verwertung mit weniger Reststoffen ermögliche. Anfechtung vor VG Rechtsgrundlagen: Deutsches AbfallG (fiktiv): Entsorgungsautarkie für alle Abfälle EU AbfallverbringungsVO Schreibt für ‚Abfälle zur Beseitigung‘ Möglichkeit der ‚Entsorgungsautarkie‘ vor, nicht aber für ‚Abfälle zur Verwertung‘ RM des VA (nur materiell) Vereinbarkeit mit dt AbfallG? Vereinbarkeit des dt AbfallG mit EU-VO? Weitergehen nach Art. 193 AEUV? Vereinbarkeit mit Art. 34/36 AEUV? Handelsbeschränkung? Rechtfertigung?

12. EU compentences in environmental law • Art. 114 • The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

13. EU compentences in environmental law • Case • „Goldplating“: Abs. 5 u. 6 (example GMO – General Court T-366/03 Öberösterreich) • New scientific evidence • Specific and new problem for MS • Notification to and consent of Commission

14. EU compentences in environmental law • Art. 11 • 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.

15. EU competences in environmental law Fine tuning of relationship EU/MS • Principle of conferral Art. 5 I, II • Subsidiarity principle Art. 5 III • Exclusive EU/shared competence • Environment policy is a shared competence Art. 4 • The Member States shall exercise their competence to the extent that the Union has not exercised its competence Art. 2 • Modalities of legislative procedure (sometimes unanimity in Council, eg Art. 192 IIa) • Category of legal act Art. • Regulation • Directive • Safeguard clauses Art. 191

16. Principles of EU environmental law • Content • Sustainable development Art. 3 III, IV TEU • High level of protection Art. 191 TFEU • Precaution Art. 191 TFEU • Prevention Art. 191 TFEU • Source Art. 191 TFEU • Polluter pays Art. 191 TFEU • Legal status • Binding • Margin of discretion • Difference of situation: enabling or commanding

17. Sustainable development • Art. 3 III TEU The Union shall […] work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.

18. Sustainable Development: weak version = 3 columns, a roof Future Generations Nature Economy Social Welfare

19. Sustainable Development: strong version = a fundament, 2 columns, a roof Zukünftige Generationen Soziale Wohlfahrt Wirtschaft Natur

20. Sustainability: perverted Version BASF: Sustainable Profitable Performance ‚Ongoing profitable performance in the sense of Sustainable Development is the basic requirement for all our activities. We are committed to our customers, shareholders and employees and assume a responsibility towards society.‘

21. Principles: high level of protection • Enabling: highest level • Commanding: adequate level • Case ECJ C-284/95 Safety High Tech: Competitor complains that certain chemicals of competing company have not been banned.

22. Precaution • Cases Pfizer, BSE, Paraquat • „Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent.“ • Operator vs EU (Pfizer Case T-13/99) • MS vs EU (negative) (BSE Case C 180/96) • MS vs EU (positive) (Paraquat Case T-229/04) • COM (2000)1: no carte blanche

23. Precaution • From the „if at all“ of measures to the kind of measures: • Precautionary thresholds • Precautionary means • Best available technology (eg filters) • IPPC Directive: • Member States shall ... ensure that installations are operated in such a way that: • (a) all the appropriate preventive measures are taken against pollution, in particular through application of the best available techniques; • (b) no significant pollution is caused;

24. Precaution • Balancing of interests, especially role of cost effects of precautionary measures => BATNEEC (best available techniques not entailing excessive cost) • IPPC Directive Art. 2 No. 11: • „‘available’ techniques shall mean those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages,...“ • Differentiation between risk assessment and risk management

25. Prevention • From ex post measures (criminal law, administrative offenses, monitoring) • To ex ante measures • Permit, EIA • Legal protection at ex ante stage

26. Legal forms of environmental law • Forms • Regulation: exhaustive; directly applicale within MS • Directive: determination of objectives and discretion of means; to be transformed into MS law; direct effect after expiry of transformation deadline • Decision: individual case; directly applicable by addressee • Author • Original legal act: Com/Council/EP • Delegated legal act (‚non essential matters‘): Com (Art. 290 I TFEU) • Implementing legal acts: Com, committees of MS representatives (Art. 291 II, III TFEU)

27. Instruments of environmental protection • Regulatory instruments („command and control“, „direct and determine“) • Ex ante (preventive): legal and technical standards for production and products, prior notification, prior permit • Ex post • repressive: punishment, liability, remediation • curative: alteration of permit, enforcement order • Economic instruments • Charges for pollution • Capping and trading pollution rights • subsidies • Voluntary instruments • Committments (codes of conduct), agreements • Environmental audit • Environmental label

28. Horizontal environmental law • Environmental impact assessment • Access to information • Participation in procedures • Access to justice • Liability for damage • Voluntary instruments

29. Environmental impact assessment • Background Espoo Convention • Parallel to Russian concept • Directives 2011/92 and 2001/41 • Characteristics • Project EIA/ Plan and Programmes EIA • Scoping • Information to be submitted by operator • Alternatives • Additional information through public participation and own sources of administrative agency • Final document prepared by authority • EIA to be taken into account; no final conclusion on the project/plan • Court review on complaint by individual or association

30. Access to environmental information • International background Aarhus Convention • Active/ passive information flow administration – citizen • Passive information = right of access important for info which authorities would rather like to keep secret • Directive 2003/4 for MS info, Regulation 1049/2001 for EU info

31. Aarhus Convention • CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS • done at Aarhus, Denmark, on 25 June 1998

32. Aarhus Convention • Art. 4 Each Party shall ensure that …public authorities, in response to a request for environmental information, make such information available to the public …including copies of the actual documentation containing or comprising such information: Without an interest having to be stated; • In the form requested unless: (i) It is reasonable for the public authority to make it available in another form, in which case reasons shall begiven for making it available in that form; or (ii) The information is already publicly available in another form.

33. Access to environmental information • No showing of legal interest => everyone‘s right • Notion of public authority includes private entities with public function • ‘any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of [an administrative agency]’ Art. 2 b) Dir 2003/4 • No prohibitive fees • Exceptions: if disclosure has adverse effects on • Legally provided confidentiality of proceedings of public authorities • Legally provided confidentiality of personal data • Legally provided confidentiality of commercial information • International relations, security, defense • Exceptions to be constructed narrowly and weighed against public disclosure interest

34. Confidential commercial information • Defined in Art. 39 TRIPS 2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices10 so long as such information: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. • Context competition law; in the context of environmental law weighing against disclosure interest prescribed • Emission information in no case to be kept secret

35. State secret • Directive 2003/4 does not introduce the term of state secret => specification international relations, public security, national defense • State secret a term for the internal administrative sphere (how and what to earmark, what personnel shall have access, etc). Legislation on disclosure, esp re environmental protection, opens up weighing against public interest. Thus, state secret broader than accepted official secret. • Case on secrecy of international relations CFI T-301/10 Sophie in‘t Veld vs Com

36. Participation in administrative procedures • Definition: ‚notice and comment‘ • Functions of procedures • Collection of information from different sources • Influence by argument and pressure • Constitutional background • Participation as improvement of performance of public authorities => no right of citizens • Participation as protection of individual rights (health, property) at early state in procedures=> right bound to individual interest (conception of „bourgeois“) • Participation as a democratic right => right not bound to individual interest (conception of „citoyen“) • Participation as representation of „bundled individual rights“, „partial public interests“, „corporate democracy“, represented by NGOs => right of collectives • Conception of „civil society“ including „citoyen“ and corporations (NGOs) • Question: is there a civil society in Russia?

37. Participation in administrative procedures • Legal approach: combination of individualist, democratic and collective conception • Democratic => public notice of project • Individualist and collective => notice of details of project and ist effects; right to comment • International background: Aarhus Convention • Article 6 on public concerned (including NGOs)

38. Each Party shall require the competent public authorities to give the public concerned access for examination …free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4: (a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions; (b) A description of the significant effects of the proposed activity on the environment; (c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions; (d)… (e) An outline of the main alternatives studied by the applicant; and (f) … 7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.

39. Participation in administrative procedures • Directive 2003/35 • Prescribing participation in procedures of EIA and concerning industrial installations • Public at large must be informed of project applications • Public concerned (including NGOs) must be informed about dossier including precise info on project and effects; comments must be allowed and considered • Public at large must be informed about final decision • Foreign countries must be informed of projects having external effects; public participation to be opened for foreign public concerned

40. Participation in regulatory procedures • No concrete requirement under horizontal EU law; but to be found in sectoral law (eg prohibition and authorisation of chemical substances under REACH Regulation) • Aarhus Convention Art. 8: Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. • Question: what about RF Law on Normative Acts?

41. Preclusion of participation; effects of procedural failure • Preclusion of court review of facts that could have been submitted in the administrative proceedings: introduced at MS level; compatibility with EU law doubtful • Effects of procedural failure • In principle: final decision unlawful • Exception of irrelevant failure • Essential procedural requirement (cf Art. 263 II TFEU) • Other requirements: test of potential influence on final decision • Rectification: until the end of administrative decision-making, including complaint procedure; but only if alternative possible (Case C-416/10 Križan: planning permission withheld in authorisation procedure; rectified at second instance admininistrative procedure)

42. Court review of administrative action/inaction • Criminal law (ex post) • Administrative infringement law (ex post, moving towards ex ante) • Administrative law (ex ante)

43. Court Admin Publ. Prosec. Operator Neighbour NGO

44. Court review of administrative action/inaction • Function of court review • Centralist conception (France: central state ensures legality of subordinate authorities): => „objective“ checking of legality of lower administrative bodies; broad concept of standing; association action welcome • Democratic conception: (India, Brazil etc.: courts as countervailing power protecting the less powerful against inactive administration): => „objective“ checking of legality of lower administrative bodies; broad concept of standing; association action welcome • „subjective“ protection of individual rights (German tradition: autocratic state (Obrigkeitsstaat) checked in terms of basic rights => plaintiff must substantiate encroachment on individual right (health, property) => problem for third parties; no association action • To be considered: difference in density of court review

45. International law background: Aarhus Art. 9 • Combination of democratic and individualist conceptions • On individuals: Each Party shall, within the framework of its national legislation, ensure that members of the public concerned (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law …to challenge the substantive and procedural legality of any decision, act or omission …. • On NGOs: … the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

46. Court review of MS administrative action/inaction • EU approach: distinguish between MS and EU • Concerning MS: centralist conception (interest in enforcement of EU law) = broad standing rights • Projects subject to EIA/IPPC: Directive 2003/35 ensuring standing for de facto concerned individuals and NGOs aiming at environmental protection • In general: Principle of effectiveness and equivalence • Case ECJ C-237/07 Janecek: subjective right of neighbour to ask for action plan for measures implementing air pollution thresholds; acknowledged although concerned public not individualized

47. Court review of EU administrative action/inaction • Competent Courts: General Court and Court of Justice • Art. 263 IV 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.’ • Case CFI T-585/93, ECJ C-321/95 Greenpeace v Com: Com subsidises 2 power stations on Canary Island. Neighbours and Greenpeace appeal at CFI. CFI: no individual concern. ECJ: no direct concern; possibility of action before MS courts with preliminary questions under Art. 267 TFEU; no association action • Improvement of access through Regulation 1367/2006: application of NGOs for internal review of administrative acts; access to General Court against answer, but „according to the relevant provisions of the treaty“

48. Responsibility for environmental damage • Categories • Sanctions under criminal law => punishment for violation of moral principles • Sanctions under administrative offenses law => punishment for violation of technical rules • Payments for damage => Pricing environmental damage • Charges/ taxes for utilization of natural resources (eg groundwater, emissions) => pricing resource uses • Liability for property damage => compensation for economic costs of damage • Liability for environmental damage => remediation of environmental damage

49. Liability for property and environmental damage • Traditional • Fault based • Environmental damage as property or health damage • „Environmentalist“ • Non fault (national legislation on dangerous installations or dangerous activies (GMO, product liability) • Environmental damage as such

50. EU environmental liability • Directive 2004/35 • Scope • Personal: operators of occupational activities • Material: environmental damage (water, soil, protected species and habitats), • Preconditions: adverse effect, not linked to property or health (exception: soil), causality, non-fault • Remedies • Public law concept: power of administrative agency to order • Remediation by operator or by agency at the cost of operator • Access to justice for NGOs and affected persons