Category: Environmental Law

Wolves and the Habitats Directive, a misread opinion in C-674/17?

By Anna Heslop

On 8 May the CJEU issued an Advocate General’s Opinion in case C-674/17 Luonnonsuojeluyhdistys Tapiola, on the hunting of Wolves in Finland.  With the final decision of the court due in the coming weeks it is useful to analyse whether the nuance of that opinion is being lost in the public reaction by interested groups, who have taken it as a green light for hunting protected species.

The Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora) requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves[1].  Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain stringent tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  1. in the interests of protecting wild flora and fauna and conserving natural habitats;
  2. to prevent serious damage to crops, livestock, forests, fisheries and water;
  3. in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  4. for the purposes of research or education, for example for repopulation or reintroduction;
  5. to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

These derogations have been the subject of a number of legal cases over the years, and the case law of the CJEU makes it clear that any derogations should be interpreted strictly (see e.g. C-6/04, para. 111 and C-508/04, para. 110).

Case C-674/17 concerns a preliminary reference from the Supreme Administrative Court of Finland for guidance on the interpretation of Article 16(1)(e) of the Habitats Directive in relation to derogations for the hunting of wolves.  A final decision in the case is awaited in the coming weeks. Continue reading

Refining transparency and responsible investment?: The case of EIB and sustainable finance

By Chrysa Alexandraki

Background

On 8 January 2019, an action was brought before the Court of Justice of the European Union (hereafter CJEU) by an environmental law charity, ClientEarth (hereafter applicant) against a multilateral development bank (hereafter MDB) and European institution, the European Investment Bank (hereafter EIB). The case concerns the financing by the bank of a biomass energy generating project in Northern Spain – Galicia -, of the cost of 60 million euros, followed by the bank’s refusal to refine its decision to finance the aforementioned investment, regardless the applicant’s request for an internal review of this decision on April 2018. The applicant bases the request for an internal review on alleged ‘errors in the assessment of the financing combined with the provision of minimal information regarding the funding decision’. The main claim brought by the applicant involves the annulment of EIB’s refusal to conduct an internal review and subject its decision to scrutiny, as requested under Article 10 of the Aarhus Regulation (hereafter Regulation), bringing into discussion implementation issues of both International and European law. Continue reading

AG Opinion on Case C-411/17: EIA for existing installations and the CJEU’s struggle with international law

By Sebastian Bechtel

Currently pending before the CJEU is a fundamental issue regarding the assessment of environmental effects of major projects: Should their impacts only be reassessed when construction takes place? Or should there also be an environmental impact assessment (‘EIA’) if an aging project is allowed to continue operation many years beyond its originally projected lifetime, without any physical alterations?

Case C-411/17 requires the Court to address its own interpretation of the EIA Directive in an earlier judgement which arguably contradicts the EU’s obligations under international law. In her Opinion published in November last year, AG Kokott has therefore urged the Court to reverse its case law.

EIA is an essential procedure to prevent environmental impacts at source and to allow for public participation in decision-making. Since many major industrial facilities, such as energy infrastructure, operate over many years, the question as to when an EIA obligation arises for existing facilities is of crucial importance. Next to posing intricate legal questions concerning the EU legal order, the case is therefore of great practical relevance to environmental protection in Europe.

This commentary presents the relevant international and EU law developments leading up to this case, discusses AG Kokott’s Opinion and reflects upon the wider implications of Case C-411/17 for the development of EU environmental law and its interaction with the international legal order. Continue reading

“Global Britain” Adopts the EU’s Normative Approach to New Trade Agreements

 By Sterre van Campen and Rebecca Poort

As for now, the United Kingdom will leave the European Union on 31 October 2019, unless a withdrawal agreement is ratified before this date. The UK aims to sign “continuity” agreements with third countries to replace existing agreements with the EU before Brexit to avoid disruptions in trade flows. With smaller market leverage and under political pressure to deliver results, there would be an incentive for the UK to adopt an approach that is more lenient than the EU’s in its negotiations of post-Brexit trade agreements. There have been reports of requests from non-EU trade partners for the UK to lower its human rights standards and to soften its food standards once it is out of the EU. However, there are indications that the UK will stick to a normative approach comparable to the EU’s when it comes to development cooperation and environmental standards, as can be seen in the UK’s first continuity agreement with a group of Eastern and Southern African States,. In this post, we argue that despite the pressures, the UK does not diverge from the normative approach that the EU takes in its post-Brexit trade agreements. Continue reading

Neues aus dem Elfenbeinturm: May 2019

5th CLEER summer school on EU external Relations law

Brussels, 24-28 June 2019. Deadline for applications: 3 June 2019.

re:constitution Fellowships

Deadline for applications: 1 June 2019.

ELGS Summer School on Comparative Law & Global Governance

Sounion, 22-26 July 2019. Deadline for applications: 21 June 2019.

Conference “Zehn Jahre Vertrag von Lissabon. Reflexionen zur Zukunft der europäischen Integration”

Berlin, 21 June 2019. (Paid) registration necessary.

Seminar “Unravelling the Brexit Conundrum, Legal and Political Perspectives”

The Hague University of Applied Sciences, 27 May 2019.

Symposium “EU Citizenship 25 Years On : Civil and Economic Rights in Action”

University of Trento, 28 May 2019.

Helsinki Summer Seminar “International Environmental Law – Process as Decline”

Erik Castrén Institute of International Law and Human Rights, 26-30 August 2019. Deadline for applications: 31 May 2019.

Summer School “The Protection of Fundamental Rights in Europe”

Bertinoro, 23-28 June 2019. Deadline for application: 12 June 2019.

Workshop on counter-terrorism at the crossroad between international, regional and domestic law

Bocconi University, 13-14 June 2019. Online registration necessary.

Würzburger Europarechtstage “Die EU zwischen Niedergang und Neugründung: Wege aus der Polykrise”

University of Würzburg, 19-20 July 2019. Deadline for (free) registration: 11 July 2019.

3rd EDEN Conference “Paradise Lost? Policing in the Age of Data Protection”

Copenhagen, 19-20 September 2019. Deadline for early bird (paid) registration: 19 July 2019.

Conference “Towards European Criminal Procedural Law”

University of Nantes, 6-7 February 2020. Deadline for abstract submissions: 15 September 2019.

Rumbling in Robes Round 2 – Civil Court Orders Dutch State to Accelerate Climate Change Mitigation

By Kai P Purnhagen, Josephine van Zeben, Hanna Schebesta, and Robbert Biesbroek

On 9 October 2018, the Civil Division of the The Hague Court of Appeal in the Netherlands has delivered its judgment on the appeal of the ‘Urgenda case’ The Court imposed an order to act on the Dutch government to adjust its policy from 20% to achieve a 25% emission reduction by 2020, compared to 1990 levels (paras 51 and 75). The judgment confirmed the initial ruling in favour of Urgenda in 2015.[i] The consequences for Dutch climate, energy and environmental policy and potentially for climate mitigation efforts worldwide are potentially far-reaching, regardless of possible further appeals by the Dutch government. This ruling raises important questions with respect to the interpretation of Dutch and European Union law, their interrelationship, and possible transferability to other national jurisdictions. In this Commentary, we discuss these issues in turn, starting with a brief synthesis of the judgment.

Continue reading

Neues aus dem Elfenbeinturm: December 2018

Conference “Harmonisation in Environmental and Energy Law”

University of Hasselt, 28-29 March 2019. (Prolonged) deadline for abstract submissions: 23 December 2018.

Michigan Law School Fifth Annual Junior Scholars Conference

University of Michigan, 26-27 April 2019. Deadline for submissions:  12 January 2019.

Seventh Applied Legal Storytelling Conference

University of Colorado Law School, 9-11 July 2019. Deadline for proposal submissions: 21 January 2019 (extended deadline 11 March 2019).

Workshop “The ‘Acceptable’ Cartel? Horizontal Agreements under Competition Law and Beyond”

London School of Economics, 22 March 2019. Deadline for abstract submissions: 31 January 2019.

Conference: “Judges in Utopia: Civil Courts as European Courts”

University of Amsterdam, 7-8 November 2019. Deadline for abstract submissions: 15 February 2019.

Symposium “New Directions in Competition Law Enforcement”

Radboud University Nijmegen, 24 May 2019. Deadline for abstract submissions: 22 February 2019.

Antarctica: Has the Court of Justice got cold feet?

By Christina Eckes

In the period since the entry into force of the Lisbon Treaty, Member States have more and more often and more and more passionately challenged the Union exercise of external relations powers conferred to it under the Lisbon Treaty. In the words of Advocate-General Kokott in her Opinion in the Antarctica cases legal actions are fought with ‘astonishing passion’ and ‘allegation[s are made] that the Commission wished to do everything possible to prevent international action by the Member States’, as well as that ‘the Council [was] compulsively looking for legal bases that always permit participation by the Member States’ (para 75).

On 20 November 2018, the Court of Justice ruled in the Antarctica cases on two actions of annulment brought by the Commission against Council decisions approving the submission, on behalf of the Union and its Member States, to the Commission for the Conservation of Antarctic Marine Living Resources (‘the CCAMLR’) of a reflection paper and a common position on four proposals concerning the creation and study of marine protected areas. The Council was supported in its defence in the two cases by 9 and 10 Member States, respectively. The point of contention – as is the case in a growing body of post-Lisbon litigation – was not the substantive position but the question of on behalf of whom the paper and the positions at issue could be submitted: the Union alone or the Union together with its Member States. Continue reading

Case C-57/16P ClientEarth v Commission: Citizen’s participation in EU decision-making and the Commission’s right of initiative

By Laurens Ankersmit

In a Grand Chamber ruling of 4 September 2018, the European Court of Justice annulled two decisions of the Commission to refuse access to documents on impact assessment reports in environmental matters. The decision is an important precedent to ensure greater transparency of the EU institutions at the early stages of legislative action – arguably the key stage of influence – and therefore a resounding win for those arguing for greater participation and influence of citizens in the EU legislative process. The judgment’s explicit recognition of this key constitutional EU value of greater participation of its citizens in the EU decision-making process in an access to documents case is therefore without doubt the most notable aspect of the ruling. It marks a major step forward for the utility for citizens of Regulation 1049/2001, especially considering the extensive restrictive case-law (in terms of transparency) in relation to other powers of the Commission under the Treaties. For transparency lawyers specifically, the finding of the ECJ that there is no general presumption of confidentiality to documents drafted in the context of a legislative initiative is significant, as is the role of the Aarhus Regulation in access to documents cases. Continue reading

Neues aus dem Elfenbeinturm: October 2018

Workshop “Justice, Injustice and Brexit”

City University of London, 19 October 2018. (Free) registration necessary.

Conference “Sustainable Business… Tested Through Dialogue”

Taranto, 12-14 December 2018. Deadline for abstract submissions: 31 October 2018.

Conference “Modelling convergence of the EU with the world: taking, receiving and becoming EU law”

City University of London, 2 November 2018. (Free) registration necessary.

Workshop on the Advocate General at the CJEU: The Linguistic Aspect

Dublin, 5 November 2018. (Free) registration necessary.

PhD Seminar “25 Years after Maastricht: Achievements, Failures and Challenges of the EU Criminal Justice Area”

University of Luxembourg, 24-25 January 2019. Deadline for applications: 15 November 2018.

Conference “Harmonisation in Environmental and Energy Law”

University of Hasselt, 28-29 March 2019. Deadline for abstract submissions: 11 December 2018.

Workshop on “Counter-Terrorism at the Crossroad between International, Regional and Domestic Law”

Bocconi University, Milan, 13-14 June 2019. Deadline for abstract submissions: 15 December 2018.

Conference “Cynical International Law?”

Freie Universität Berlin, 6-7 September 2019. Deadline for abstract submissions: 31 January 2019.

POMFR: L. Ankersmit, Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order (Cambridge: CUP, 2017)

By Thomas Horsley

Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order, by Laurens Ankersmit (Cambridge, Cambridge University Press, 2017, ISBN 9781107191228); 294 pp.; £85.00

This monograph examines the position of ‘process-based measures’ within the EU legal order. PBMs (also known as ‘process and production method’ rules) are characterised as public and private initiatives that, in the context of international trade, seek to address environmental and social concerns that arise externally; in other words, beyond the territory of the regulating state. Examples include, bans on the importation and sale of cosmetics tested on animals; national and regional product labelling schemes; and private initiatives such as Fairtrade and the Marine Stewardship Council certification programme. Continue reading

Case C 142/16 Commission v Germany: the Habitats Directive meets ISDS?

By Laurens Ankersmit

Recently, the ECJ has found Germany in breach of its obligations under the Habitats Directive for authorising the operation of a coal-fired power plant near Hamburg, Germany without an appropriate environmental impact assessment. The case is the latest addition to a series of legal battles surrounding the environmental impact of the plant. On the one hand, the negative environmental impact, in particular for fish species in the Elbe river, has led to litigation opposing the authorisation of the plant, including these infringement proceedings before the ECJ. On the other, Swedish power company Vattenfall has opposed the environmental conditions attached to its water use permit before a national court and before an ISDS tribunal which in its view would make the project ‘uneconomical’. This post will discuss the general legal background of the case, the ECJ judgment, and comment on the wider implications of these legal battles for the relationship between investment law and EU law. Continue reading

Opinion 2/15: Adding some spice to the trade & environment debate

By Laurens Ankersmit

Opinion 2/15 might keep legal scholars, practitioners, and policy-makers busy for the foreseeable future. Many aspects of the ruling deserve comment and further discussion (see already for starters the blogposts here, here, here, here, here, and here) and I would like to follow up my previous post with some comments on an intriguing paragraph of the Opinion: paragraph 161 on the possible suspension of the agreement for a breach of one of its ‘sustainable development’ provisions. The ECJ’s statements here touch upon a long-standing debate whether labour and environmental provisions in trade and investment agreements should be enforceable. The ECJ found that Parties could indeed (partially) suspend or even terminate the agreement for breaches of such provisions. Practicalities aside, this finding is certainly a positive step from a social and environmental point of view. Continue reading

Implementation of the Aarhus Convention by the EU – An Inconvenient Truth from the Compliance Committee

By Benedikt Pirker

Introduction

Arguably one of the most important international environmental agreements of our days, the Aarhus Convention (AC), obliges its contracting parties to provide access to information, public participation and access to justice in environmental matters. Based on a communication by the NGO ClientEarth, the Compliance Committee – the compliance mechanism put in place under the AC – handed down an important decision (called ‘findings and recommendations’ in the Aarhus terminology) with regard to the European Union on 17 March 2017. The present post aims to highlight the most important findings of the Committee, which – in no uncertain terms – criticized a number of features of current EU law as a failure to implement the AC. Continue reading

Brown Bears II: Aarhus and the Charter show their teeth

By Laurens Ankersmit

In a significant win for access to justice in environmental matters, the Court’s Grand Chamber found that Article 47 of the Charter of Fundamental Rights (the right to an effective remedy), read together with the Aarhus Convention, precluded the application of national procedural rules allowing for swift decision-making at the expense of rights granted to environmental NGOs. The case’s procedural history is very complex (the Advocate General referred to it as either Kafkaesque or tilting windmills like Don Quixote, depending on your point of view), so after only a brief factual discussion I will focus on the two major constitutional issues that the Court had to deal with:

  1. The legal effects of the Aarhus Convention in the EU legal order;
  2. The meaning of Article 47 of the Charter of Fundamental Rights (CFR).

Continue reading

Silver linings: What to expect from environmental chapters in the EU’s Free Trade Agreements?

By Laurens Ankersmit

This blog post summarises my contribution to the Brexit & Environment roundtable organised by the British Academy & EUrefEnv on 30 January 2017. It was published before on the blog The EU Referendum and the UK Environment: an expert review

The UK government has announced that it will pursue a “bold and ambitious Free Trade Agreement” with the EU. The EU, no stranger to negotiating such agreements, typically includes in its FTAs a chapter dedicated to sustainable development. From the start, it should be clear that these chapters come nowhere near the protection offered by current EU environmental legislation. That said, these chapters may present some opportunities. This contribution seeks to explain the EU’s approach to environmental protection in its FTAs and identifies four key options for a potential future environmental chapter in a UK-EU FTA. Continue reading

Access to information relating to emissions into the environment – Case C-673/13 P Commission v Greenpeace Nederland and PAN Europe

By Anne Friel

On 23rd November the Court of Justice handed down its judgment in appeal case C-673/13 P European Commission v Greenpeace Nederland and Pesticide Action Network Europe, confirming a broad interpretation of the concept of “information which relates to emissions into the environment” in the context of pesticides. According to the EU’s access to documents laws, public authorities, including the EU institutions, cannot disclose information that would harm the commercial interests of a third party unless there is an overriding public interest in doing so. And if the information relates to emissions into the environment, there is an irrebuttable presumption that disclosure is in the public interest (Article 4(4)(d) of the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, implemented with regard to the EU institutions by Article 6(1) of Regulation 1367/2006 (the Aarhus Regulation)). Consequently, a broad interpretation of the term “information which relates to emissions into the environment” has a direct impact on the ability of companies to protect commercially sensitive information. The long list of international, European and American pesticide lobbies that intervened in the case bears witness to this.  Continue reading

Neues aus dem Elfenbeinturm: December 2016

Conference « EU Civil Procedure Law and Third Countries: Which Way Forward? »

University of Kiel, 2-3 February 2017. Deadline for abstract submissions : 19 December 2016.

Workshop « International Law in a Dark Time »

University of Helsinki, 22-23 May 2017. Deadline for abstract submissions : 30 December 2017.

Conference « EU Policy on International Investments : Uncertainties, Challenges, and Opportunities »

University of Zaragoza, 20-21 March 2017. Deadline for proposal submissions : 31 December 2017.

IntLawGrrls! 10th Birthday Conference

University of Georgia Law School, 3 March 2017. Deadline for abstract submissions : 1 January 2017.

Workshop « New Challenges for European Solidarity »

University of Cambridge, 9-10 March 2017. Deadline for abstract submissions : 13 January 2017.

Call for papers Jean Monnet Seminar « The EU and Trust in the Online Environment »

Inter University Center, Dubrovnik, 23-29 April 2017. Deadline for abstract submissions : 31 January 2017.

ESIL Annual Conference 2017 : Global Public Goods , Global Commons, and Fundamental Values : The Responses of International Law

University of Naples, 7-9 September 2017. Deadline for abstract submissions : 31 January 2017.

Call for submissions : Trade, Law and Development Special Issue on Recent Regionalism

Deadline for submissions : 15 February 2017.

Call for papers : « Human Dignity and the Constitutional Crisis in Europe : Humanity, Democracy, Social Europe »

European University Institute, Florence, 15-16 June 2017. Deadline for abstract submissions : 28 February 2017.

European Environmental Law Forum 2017 Conference : « Sustainable Management of Natural Resources – Legal Approaches and Instruments »

Copenhagen, 30 August – 1 September 2017. Deadline for abstract submissions : 17 March 2017.

The Extraterritorial Reach of EU Animal Welfare Rules (Again): Case C-592/14 European Federation for Cosmetic Ingredients

By Jessica Lawrence

What is the scope of the marketing ban on cosmetics containing ingredients that were tested on animals? Does it include cosmetics that were tested on animals because of the requirements of a third country’s laws? This was the question the CJEU addressed in its decision in the European Federation for Cosmetic Ingredients case. The Court’s 21 September 2016 judgment goes some way toward resolving the lack of clarity of the animal testing provisions of the Cosmetics Regulation (which Advocate General Bobek’s Opinion referred to as ‘not well drafted’ and ‘not a paragon of clarity’ (AG’s Opinion paras 74 & 24)). But it also continues a recent line of cases in which the Court approves of EU rules with important extraterritorial effects. Continue reading

Neues aus dem Elfenbeinturm: March 2016

Jean Monnet Doctoral Workshop “Interactions Between European Union and International Law”

City University London, 23 June 2016. Deadline for abstract submission: 25 March 2016.

Conference “Boosting the Enforcement of EU Competition Law at Domestic Level”

Radboud University Nijmegen, 3 June 2016. Deadline for abstract submissions: 31 March 2016.

Workshop “The Disintegration of Europe”

Hertie School of Governance, Berlin, 30-31 May 2016. Deadline for abstract submissions: 1 April 2016.

Seminar “Transnational Solidarity: Setting the Boundaries”

Center for Transnational Legal Studies, London, 1 April 2016. (Free) registration needed.

Conference “Environmental Rights in Europe and Beyond”

Lund, 21-22 April 2016. (Free) registration needed.

Conference “Existe-t-il encore un seul non bis in idem aujourd’hui?”

University of Nancy, 28 April 2016. Registration needed.

Vienna Journal on International Constitutional Law Conference 2016

Vienna University of Economics and Business, 23 September 2016. Deadline for abstract submissions: 15 May 2016. Continue reading