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 →
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 →
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.
Situated between the market and the state, the notion, concept and characteristics of public services are often multifaceted and difficult to grasp. The EU layer of public service regulation further adds to this complexity as it interacts in many different ways with the national legal frameworks in this field: EU law may structure national legal norms, coordinate the provision of services between the Member States, bring about minimal or maximal standards (e.g. pertaining to quality, ubiquity or affordability of the services provided), comprise detailed regulation or even set prices for the provision of public services as in the case of mobile roaming tariffs. At the same time the law on public services is under the influence of a whole range of EU law provisions and regimes: namely the rules on free movement, competition law and state aid, general and sector-specific primary law provisions, horizontal rules of secondary law, as well as a large body of sector-specific secondary EU law, which has increased substantially over the past few years. With his book Public Services in EU Law Wolf Sauter undertakes a challenging attempt to elucidate the complexity of EU law in the field of public services. Continue reading →
This post concerns a bit of a Dutch thing, namely the ‘position’ of the Dutch National Competition Authority ACM on an agreement by electricity producers active on the Dutch market, but it is interesting more generally for those who are interested in the relation between (EU) competition law and other issues like sustainability. The trigger for this position by the ACM is a plan in the national Energieakkoord which is an agreement between organisations representing employers, employees, environmental NGO’s, companies and other social actors that aims to benefit the transition to a more sustainable energy policy and sustainable economic development in the Netherlands. Part of this Akkoord is the deal between four electricity producers to close down five older coal fired power plants (all constructed in the 1980s) in a coordinated manner. This get-together of four competitors to reduce production capacity has obvious competition law implications, so the Netherlands Competition Authority (ACM) was consulted on the compatibility of this plan with Article 101 TFEU and the Netherlands equivalent, Article 6 of the Competition Act. As the title suggests, the ACM considered the plan incompatible with competition law in a very preliminary and barely reasoned finding.
In this case, the Belgian government fined Essent Belgium for failure to comply with Belgian legislation requiring electricity suppliers to purchase a certain amount of green energy from Belgian suppliers. As many readers will no doubt notice, this case is very similar to PreussenElektra, however, the legislative context and European electricity market have undergone substantial changes since that judgment was handed down. Today, EU legislation enables Member States to verify whether electricity produced in other Member States is green. Also, EU legislation now requires Member States to reach certain national targets for contribution to green electricity production.
Past Monday, Commissioner Hedegaard announced that she requested the EU Member States to suspend the application of the Emissions Trading Scheme to the aviation sector pending new impetus that might be given by the ICAO Council to find a multilateral solution to combating climate change in the aviation sector. Hedegaard announced that ‘in order to create a positive atmosphere around these very important negotiations, I have just recommended in a telephone conference with 27 member states that the EU stops the clock when it comes to enforcement of aviation into the Emissions Trading System (ETS) to and from non-European countries until after the ICAO assembly next autumn.’
This is the latest development in the ongoing saga concerning the inclusion of aviation into the European scheme. The international protest has been growing the past year especially since last years ATA-judgment of the CJEU, with many of the EU’s main trading partners having threatened to take retaliatory measures against the EU for applying their scheme to third country carriers. This heterogeneous group, dubbed ‘the coalition of the unwilling’, has vowed to combat the EU ETS within the ICAO until it has been removed. Today, the Republican dominated US House of Representatives passed a bill making it illegal for US air transport undertakings to comply with the EU ETS.
The General Court has finally handed down the judgment in the Greek Lignite (brown coal) case. This is a long-running case resulting from a complaint (dating from 2003) concerning the exploitation of lignite in Greece. As it happens, lignite is the most abundant fuel in Greece, and access to lignite is essential for the production of (relatively) cheap electricity. Greek lignite reserves amount to approximately 4 million tonnes of which about half can be exploited by DEI, the Greek Public Power Company. No such rights have been assigned for the remaining 50% of the lignite reserves, and DEI operates all power plants in Greece that use lignite. The Commission found the exclusive rights for lignite contrary to Article 106(1) in connection with 102 TFEU in what is a broad and teleological reading of the Court’s jurisprudence in this field. The General Court, however, has a rather different reading of this case law, resulting in annulment of the Commission Decision.
Because Greece has liberalised its electricity market, all companies intending to supply electricity to the Greek wholesale market must hand in daily price-quantity offers. By examining these offers along with the forecast demand for electricity, the network operator determines the amount of electricity needed to meet demand. This electricity is then fed into the grid. Renewable electricity receives first priority, following which conventional electricity producers get to feed their electricity into the grid, with the cheapest offer coming first and the rest following in the order of their ascending prices. The price-quantity offer quoted by the last production unit to feed into the grid will determine the market price. In these circumstances, having access to lignite as a fuel for electricity production is required for the production of cheap electricity, which in turn is required to ensure that this electricity will actually be sold on the market.
On the 5th of June 2012, the Court of Justice of the EU (hereafter ‘CJEU’) delivered an important judgment in the field of European State aid law on the very notion of State aid and the application of the private investor test to situations where a priori a private investor could not adopt the same behaviour as the State. To put things in context, it will be recalled that the private investor test is normally used in order to determine whether a public company has been granted an advantage within the meaning of Article 107 TFUE, by comparing the behaviour of the State with that of a private investor operating in normal market conditions. It was settled case-law (see notably the case-law quoted by the Court at point 79 of its judgment) however that, when the State acts as a public authority (by using its fiscal prerogatives for example), this test cannot be applied as there is no private investor to which the State can be compared to.
For the first time with this EDF judgment, the CJEU attempts to set criteria in order to distinguish between the State acting as shareholder and the State exercising public power.