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.
University of Hasselt, 28-29 March 2019. (Prolonged) deadline for abstract submissions: 23 December 2018.
University of Michigan, 26-27 April 2019. Deadline for submissions: 12 January 2019.
University of Colorado Law School, 9-11 July 2019. Deadline for proposal submissions: 21 January 2019 (extended deadline 11 March 2019).
London School of Economics, 22 March 2019. Deadline for abstract submissions: 31 January 2019.
University of Amsterdam, 7-8 November 2019. Deadline for abstract submissions: 15 February 2019.
Radboud University Nijmegen, 24 May 2019. Deadline for abstract submissions: 22 February 2019.
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
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
City University of London, 19 October 2018. (Free) registration necessary.
Taranto, 12-14 December 2018. Deadline for abstract submissions: 31 October 2018.
City University of London, 2 November 2018. (Free) registration necessary.
Dublin, 5 November 2018. (Free) registration necessary.
University of Luxembourg, 24-25 January 2019. Deadline for applications: 15 November 2018.
University of Hasselt, 28-29 March 2019. Deadline for abstract submissions: 11 December 2018.
Bocconi University, Milan, 13-14 June 2019. Deadline for abstract submissions: 15 December 2018.
Freie Universität Berlin, 6-7 September 2019. Deadline for abstract submissions: 31 January 2019.
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
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
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
By Benedikt Pirker
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
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:
- The legal effects of the Aarhus Convention in the EU legal order;
- The meaning of Article 47 of the Charter of Fundamental Rights (CFR).
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
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
University of Kiel, 2-3 February 2017. Deadline for abstract submissions : 19 December 2016.
University of Helsinki, 22-23 May 2017. Deadline for abstract submissions : 30 December 2017.
University of Zaragoza, 20-21 March 2017. Deadline for proposal submissions : 31 December 2017.
University of Georgia Law School, 3 March 2017. Deadline for abstract submissions : 1 January 2017.
University of Cambridge, 9-10 March 2017. Deadline for abstract submissions : 13 January 2017.
Inter University Center, Dubrovnik, 23-29 April 2017. Deadline for abstract submissions : 31 January 2017.
University of Naples, 7-9 September 2017. Deadline for abstract submissions : 31 January 2017.
Deadline for submissions : 15 February 2017.
European University Institute, Florence, 15-16 June 2017. Deadline for abstract submissions : 28 February 2017.
Copenhagen, 30 August – 1 September 2017. Deadline for abstract submissions : 17 March 2017.
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
City University London, 23 June 2016. Deadline for abstract submission: 25 March 2016.
Radboud University Nijmegen, 3 June 2016. Deadline for abstract submissions: 31 March 2016.
Hertie School of Governance, Berlin, 30-31 May 2016. Deadline for abstract submissions: 1 April 2016.
Center for Transnational Legal Studies, London, 1 April 2016. (Free) registration needed.
Lund, 21-22 April 2016. (Free) registration needed.
University of Nancy, 28 April 2016. Registration needed.
Vienna University of Economics and Business, 23 September 2016. Deadline for abstract submissions: 15 May 2016. Continue reading
University of Edinburgh, 30 March 2016. Deadline for abstract submissions: 20 December 2015.
University of Cambridge, 8-9 April 2016. Deadline for abstract submissions: 10 January 2016.
Brussels, 17 June 2016. Deadline for abstract submissions: 15 January 2016.
European University Institute, Florence, 1-2 June 2016. Deadline for abstract submissions: 31 January 2016.
University of Fribourg, 11-12 November 2016. Deadline for abstract submissions: 1 March 2016.
Wrocław University, 14-16 September 2016. Deadline for abstract submissions: 15 March 2016.
University of Vienna, 7 March 2016. (Paid) registration needed.
By Laurens Ankersmit and Benedikt Pirker
Challenging EU rules on the basis of EU agreements is very difficult. Challenging EU rules on the basis of the Aarhus Convention is pretty much impossible. In ClientEarth v Commission the Court reasoned once again that the Aarhus Convention could not be relied upon to invalidate EU secondary legislation. In this case, the Court found that ClientEarth could not rely on the Aarhus Convention to challenge the Public Access to Documents Regulation (Regulation 1049/2001) in order to obtain commissioned studies on compliance by Member States with EU environmental law in the context of infringement procedures. One of the arguments put forward by the Court was that the Aarhus Convention could not be relied upon because it ‘was manifestly designed with the national legal orders in mind’. This is an extraordinary statement, since the EU is party to the Convention and thus bound by it. It was no doubt inspired by the concern to protect the infringement procedure contained in article 258 TFEU, raising a number of questions on the relationship between EU primary, secondary and international law. Continue reading
University of Luxembourg, 1-2 October 2015. Deadline for registration: 30 September 2015.
Court of Justice of the European Union, 2-3 October 2015. (Paid) registration required.
University of Liverpool, 9 October 2015. (Free) registration required.
University of Luxembourg, 15 October 2015. (Free) registration required.
UM Campus Brussels, University of Maastricht, 19 October 2015. (Paid) registration required.
University of Luxembourg, 22-23 October 2015.
Deadline for submissions: 31 October 2015.
Monastery of San Nicolò, 23-28 November 2015. Deadline for application: 30 October 2015.
University of Luxembourg, 16 November 2015.
PluriCourts, University of Oslo, 20-25 June 2016. Deadline for abstract submissions: 15 January 2016.
By Jessica Lawrence
In an interesting judgment, the CJEU has ruled that Regulation 1/2005 on the protection of animals during transport applies outside of EU borders to transport taking place in third states, if that transport began on EU territory. This is a novel ruling that is expected to have important positive impacts on animal welfare. However, it can also be seen as an example of the CJEU’s tendency in recent years to read the EU’s jurisdiction expansively, stretching traditional international law notions of ‘territorial jurisdiction’ to permit the regulation of conduct taking place in third states. Continue reading
By Benedikt Pirker
Should EU secondary legislation be reviewed against the benchmark of the provisions of an international agreement? In 2012 the General Court answered this question in the affirmative and annulled two decisions of the Commission which were based on a regulation which was deemed incompatible with the Aarhus Convention. However, the EU institutions appealed against those judgments. Consequently, in cases C‑401 to 403/12, Council e.a. v. Vereniging Milieudefensie and C-404 and 405/12, Council v. Stichting Natuur en Milieu e.a., the Grand Chamber of the Court was confronted with the same question. There is already quite some case law on the topic of review of legality within the EU legal order in light of international obligations of the EU, typically with the Court being hesitant to undertake such review. In the cases involving the Vereniging Milieudefensie and the Stichting Natuur en Milieu, the General Court and the Advocate General made, in my view, some valuable suggestions in favour of reviewing EU law against international agreements. Unfortunately, the Court decided to stick to its guns, thus continuing in the line of its own previous jurisprudence, and annulled the General Court’s judgments. The result leaves a somewhat sour taste for those who think that EU institutions and their legal acts should be amenable to judicial review under reasonable conditions. Not only is the very purpose of the EU regulation at issue to implement the obligations arising from the Aarhus Convention, but the Grand Chamber’s view also leads to a lacuna in legal protection in EU law exactly where the central aim of the Aarhus Convention would in theory be to provide individuals with access to justice. Continue reading