Category: Environmental Law

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

Neues aus dem Elfenbeinturm: December 2015

Workshop „The Age of Austerity: A New Challenge for State Powers“

University of Edinburgh, 30 March 2016. Deadline for abstract submissions: 20 December 2015.

CJICL Conference „Public and Private Power“

University of Cambridge, 8-9 April 2016. Deadline for abstract submissions: 10 January 2016.

Workshop „The preliminary reference procedure as a compliance mechanism of EU environmental law“

Brussels, 17 June 2016. Deadline for abstract submissions: 15 January 2016.

Conference „Building Consensus on European Consensus“

European University Institute, Florence, 1-2 June 2016. Deadline for abstract submissions: 31 January 2016.

Doctoral Colloquium „Responsibility in International and European Law, Philosophy and History“

University of Fribourg, 11-12 November 2016. Deadline for abstract submissions: 1 March 2016.

EELF Conference „Procedural Environmental Rights: Principle X in Theory and Practice“

Wrocław University, 14-16 September 2016. Deadline for abstract submissions: 15 March 2016.

Conference „Intra-EU BITs and Intra-EU Disputes“

University of Vienna, 7 March 2016. (Paid) registration needed.

Review of EU legislation under EU international agreements revisited: Aarhus receives another blow

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

Neues aus dem Elfenbeinturm: September 2015

Conference “The European Union as an Actor in International Economic Law”

University of Luxembourg, 1-2 October 2015. Deadline for registration: 30 September 2015.

Conference “Criminal Justice: Jurisprudence of the European Court of Justice – Today and Future”

Court of Justice of the European Union, 2-3 October 2015. (Paid) registration required.

Inaugural CMLRev Conference “Membership of the Union and Membership of the Euro”

University of Liverpool, 9 October 2015. (Free) registration required.

Workshop “Mutual Legal Assistance in the Digital Age: Problems, Challenges, Solutions for Criminal Justice”

University of Luxembourg, 15 October 2015. (Free) registration required.

Workshop “A balanced data protection in the EU: conflicts and possible solutions”

UM Campus Brussels, University of Maastricht, 19 October 2015. (Paid) registration required.

Conference “Migration Policy in the European Union – Current Challenges and Future Developments”

University of Luxembourg, 22-23 October 2015.

Call for submissions for the 2016 edition of the Hibernian Law Journal

Deadline for submissions: 31 October 2015.

EIUC Training for International Electoral Observers

Monastery of San Nicolò, 23-28 November 2015. Deadline for application: 30 October 2015.

Workshop “Victims in Europe – Needs, Rights, Perspectives”

University of Luxembourg, 16 November 2015.

Colloquium “The Environment in Court – Environmental Protection in National and International Courts, Tribunals, and Compliance Mechanisms”

PluriCourts, University of Oslo, 20-25 June 2016. Deadline for abstract submissions: 15 January 2016.

Zuchtvieh-Export GmbH v Stadt Kempten: The Extraterritorial Reach of EU Animal Welfare Rules

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

Cases C-401 to 403/12 and C-404 to 405/12: No review of legality in light of the Aarhus Convention

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

Neues aus dem Elfenbeinturm: January 2015

Conference : Alternatives to Immigration Detention in the EU – The Time for Implementation

Université Libre de Bruxelles, 6 February 2015. Deadline for (free) registration : 2 February 2015.

Workshop “Drones and Targeted Killings: Defining a European Position”

Aarhus University, 5-6 March 2015. Deadline for abstract submissions : 1 February 2015. Continue reading

‘Facilitating’ infringements of article 34 TFEU and the territorial nature of green electricity support schemes: Case C-573/12 Ålands Vindkraft AB v Energimyndigheten

By Laurens Ankersmit

In this very interesting Grand Chamber judgment, the Court found Sweden’s scheme promoting the national production of green electricity (in accordance with Directive 2009/28, the so-called RES Directive) to be compatible with article 34 TFEU. The Court’s judgment is particularly notable for its deferential stance towards measures related to environmental protection based on EU rules which – paradoxically – are very nationally oriented although they tackle the global problem of climate change. The judgment is to be welcomed for giving both the EU and its Member States sufficient policy discretion on how to mitigate the effects of climate change. On the other hand, the EU legislator’s national approach may not contribute to the achievement of a European electricity market. In adopting this deferential approach, the Court had to deal with some interesting legal issues relating to the free movement of goods, in particular:

  • The discriminatory nature of the rules in question and, despite this, their possible justification;
  • The impact EU legislation has on the proportionality analysis of the Court.

Continue reading