Transcript INTRODUCTION TO EU ENVIRONMENTAL LAW (I)

FREE MOVEMENT OF GOODS AND
ENVIRONMENTAL PROTECTION
THE BIG PICTURE
INTERLINKS IN EU LEGAL CULTURE BETWEEN:
– THE INTERNAL MARKET
– EU COURTS
– EU ENVIRONMENTAL LAW
Sui generis type of Union/type of market
• Developed from sui generis polity in 1958 to an ‘ever
closer union’ (1 TEU)
• Market liberation central:
– Free movement of goods and factors of production
– ‘cooperation and integration that would make panEuropean armed conflict inconceivable’
– ‘we’re not here just to make a single market, that doesn’t
interest me, but to make a political union’ (Delors)
• The internal market has a double edged quality:
husbands economic activities and furthers integration
Are markets markets?
- Narrow definition
- competition law
- Broad definition
- Article 11 TFEU: environmental protection
integrated in Union’s policies and activities
What is the internal market?
• It has the qualities of a Russian dolls (Armstrong)
- Narrow
- Article 26 (2) TFEU: ‘internal market shall compromise an
area without internal frontiers in which the free movement
of goods, persons, services and capital is ensured in
accordance with the provisions of the Treaties.’
- Broad
- abolishing barriers to trade, harmonising and approximating
legislation with the aim of facilitating firms work across
borders
- Finalising the market is an ‘ongoing’ project
Prelude to the Free Movement and
Environmental Protection Provisions
• Specific market-based legal framework
• Agenda set at creating an integrated and
competitive market
THE INTERNAL MARKET
FREE MARKET PROVISIONS: GOODS
• ‘Goods’
– Case 7/68 Commission v Italy: that can be ‘valued in money and which
are capable, as such, of forming the subject of commercial
transactions’
– Wallon case
• Control of fiscal measures: Art. 30, 110 TFEU
• Quantitative barriers and all measures having equivalent effect: Art
34-35 TFEU
– Dassonville: ‘capable of hindering directly or indirectly, actually or
potentially intra-Community trade’.
– Danish Bottles case
– Bluhme case
EXEMPTIONS (I)
• Art 36 TFEU (health, animals and plants)
– Direct discrimination
– Bluhme + Mickelsson and Roose
EXEMPTIONS (II)
• Cassis de Dijon exemption
– Indirect indiscrimination
• disperse national provisions must be accepted, in so far, as such rules,
applicable to national domestic and imported productions without
distinction, may be deemed necessary in order to satisfy national
mandatory requirements
• E.g. public health, fairness of commercial transactions, consumer
protection
– Danish Bottles:
• ‘protection of the environment is one of the Community’s essential
objectives, which may as such justify certain limitations of the
principle of the free movement of goods’
– Wallon case (direct discrimination)
EXEMPTIONS (III)
• Keck- exemption
– Selling arrangement (use, not product-related)
– Applies indistinctly
– Affecting products in the same manner, in law and
in fact, the marketing of domestic products and of
those from other Member States, do not fall
within Art 34 TFEU
• Mickelsson and Roos (AG Kokott)
• New development: access to market (userequirements)
Speech by Potocnik, European
Commissioner for Environment
• ’there is enormous and immediate potential for stimulating
investment and new jobs in environmental sectors…full
implementation of the existing waste legislation by
Member States would create 40,000 jobs and save € 72
billion a year compared to non-implementation’
• ’I believe that the economy and the environment are
deeply inter-linked and inter-dependent. I believe that the
only way to develop sustainably is through making the way
our economies work sustainable. And I believe the Single
Market can be a driving force for greening the economy’
The Green Internal Market
• Commission Communication: Building the
Single Market for Green Products
– E.g. Uniform way of promoting green credentials
Just a market?
• ‘a highly politicized choice of ethos, ideology and political
culture’ is crafted, which follows an economic rationale
that also seeks to protect high social and environmental
standards’ (Weiler)
• Art. 3(3) TEU: ‘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.’
’Gap-filler clause(s)’
• Former Article 308 EC, as well as Article 95 EC,
which allows harmonisation of national laws on
the basis of furthering the establishment of the
internal market, and creates residual general
powers for the Union to safeguard the
functioning of the internal market respectively
• Art 114(3) TFEU: approximation of laws, high
level of env protection is required
Examples of filling the gap
• 80/778/EEC Drinking Water Directive
• 89/428 EEC Titanium Dioxide Directive
• ’Economic Spillovers’
• What does it all mean?
– The internal market has a kaleidoscope of aims, incl.
creating prosperity, social security and environmental
protection
– Market creation is used to expand on environmental
law competences
THE JUDICIARY
The Court’s Jurisdictions
• By 2006 more than 700 judgments, 50
legislative acts that directly or indirectly
regulate environmental matters (Jacobs)
• Art 19 TEU: ‘shall ensure that in the
interpretation and application of the Treaties
the law is observed.’
What the Court does
• Promotes European integration also in
interpreting environmental laws
• Has lead to conflicts between free market
provisions and environmental protection
– Balancing act
Balancing: pre EU environmental
competences
• ADBHU case
– ‘the principle of freedom of trade is not to be
viewed in absolute terms but is subject to certain
limits justified by the objectives of general interest
pursued by the (then-) Community’
– EU law must be seen in the perspective of
environmental protection, which is one of the
Community’s essential objectives’
Balancing: which legal base?
• Cartagena Protocol – an international
agreement, which aimed to control the
transboundary movement and management
of living modified organisms
– Trade measure (Art 300 EC, 133 EC)
– Or environmental agreement (175 EC)
Balancing: free movement and
environmental protection
• Bluhme and Preussen Elektra
– fall within the scope of Article 34 TFEU
– justified these on the grounds of protecting and
preserving the bee population, and promoting
renewable energy
• Distinctly
• Indistinctly
– justified, one of the arguments being that the
protection of the environment is one of the
Community’s essential objectives.
Discuss
Is it fair to say that the court is activist? Ought it
be?
Discuss
Should environmental concerns be resolved at
the decision-making or the judicial level?
What kind of court?
• Focus of court is the effective and uniform
application of EU law (Sobotta)*
– Art 263 (uniformity)
– Art 258-260 (effectiveness – most EU env laws)
• This has had an effect on EU env law
• It is not an environmental law court
– Grand Chamber:
• 2006-2011: 282 cases in total
• Only 10 raised environmental questions
C Sobotta, ’Compliance with European Environmental Law – Deficiencies and
Approaches. The role of the CJEU’ (2012) 9 JEEPL 91-107
EU ENVIRONMENTAL LAWS
EU is ‘regulatory in nature’
• Internal market is a ‘gigantic regulatory
object’, incl. the adoption of 300+ directives
and regulations only in the first five years
• Freer markets, more rules
• Mainly ’command-and-control’ type of EU
environmental regulation, and in the form of
directives
New views on environmental regulation
• Command-and-control
– ‘obscure, complex and inaccessible’
– Damages the competitiveness of European
business, the employment prospects of European
citizens and inhibits economic growth
New kids on the (regulatory) block
• Better Regulation/ Smart Regulation agenda)
– Following Lisbon Agenda
– simplify legislation, reduce administrative burdens,
and increase economic competitiveness
– Create ‘win-win’ situations
• Ecological modernisation
– Environment + economy go hand in hand
– Dimas
• Europe ‘needs to invest more in innovative ways to protect
the environment while boosting the EU’s competitiveness.’
The holy grail?
• Weatherill
– any assessment and reform of EU legislation is
directly linked to EU’s institutional framework
• i.e. who legislates better?
– Subsidiarity principle
– It is based on value judgments
• ‘Markets exist to serve a purpose which is to deliver
sustainable prosperity for all, and they will not always
do this on their own. Regulation has a positive and
necessary role to play.’ (Commission Communication)
GOODIE BAG
• EU constructs the internal market via
regulation that the EU courts interpret
• EU env law tends to be constructed and
reformed so as to help enhance the internal
market and its competitiveness
• Env protection is used in this trade-liberated
context, inter alia, by the EU court to further
European integration
– Balancing act