Transcript Undestanding EU Environmental Law

Legal instruments of secondary
environmental legislation –
administrative instruments
Prof. Gyula Bándi
Administrative procedures and instruments
Notification
Seveso II. directive (Council Directive 96/82/EC) the notification shall contain the following details:

the name or trade name of the operator and the full address of the establishment concerned,
the company register number, the telephon or telefax numbers, also e-mail address;

the registered place of business of the operator, with the full address, size and land register
details;

the name or position of the person in charge of the establishment, if different from (a);

information sufficient to identify the dangerous substances or category of substances involved
and which provide assisstance in idetifying the dangerous substance;

the quantity and physical form of the dangerous substance or substances involved;

the actual or proposed activity of the installation or storage facility, the determination of
operations, tasks and operating conditions;

the immediate environment of the establishment which could be affected by the likely major
accident based upon the similar methods and conditions of determining the impact area along
the lines of environmental impact assessment procedure.
The operator is obliged to report any significant changes related to the registered activity to the
authorities immediately at their occurance, thus, in particular:

significant increase of the quantity of the hazardous substance at issue, or cases of significant
change occured in its nature or physical appearance, or cases of change in the utilisation or
application process;
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in case of temporary closing of the establishment.
C-215/04, preliminary ruling Marius Pedersen
„49 In that regard, taking account of the fact that the
competent authorities must be duly informed, by way of
prior notification, of the type, movement and disposal or
recovery of the waste, so that they may take all
necessary measures for the protection of human health
and the environment, including the possibility of raising
reasoned objections to the shipment, it is necessary to
maintain the rights of those authorities to request
additional information when they consider that the
notification is incomplete, rights conferred on them by
Article 6(4) of Regulation No 259/93.”
Registration
Case C-270/03, Commission vs. Italy
„21 The objective of Directive 91/156 was, inter alia, to reinforce control by the
public authorities. The 12th recital in the preamble thus states that, ‘in order
that waste can be monitored from its production to its final disposal, other
undertakings involved with waste, such as waste collectors, carriers and
brokers should also be subject to authorisation or registration and
appropriate inspection’. New provisions were inserted into Article 12 of the
directive for that purpose. Those provisions specifically state that
undertakings which transport waste, where not subject to authorisation, are
required to be registered and that the undertakings subject to that obligation
are those which carry out such transport ‘on a professional basis’. Directive
91/156 thus replaced mere ‘supervision’, which no longer appears as such
in the directive, with an obligation of registration….
29 It follows from the foregoing considerations that Article 12 of the directive
imposes an obligation of registration on establishments or undertakings
which, in the course of their activities, normally and regularly transport
waste, whether that waste is produced by them or by others. Furthermore,
there is no provision in the directive for any exceptions to that obligation,
based on the type or quantity of waste.”
Case C-354/99, Commission vs. Ireland on animal
experiments
 „32 … One of the conditions is that the licence holder is
to ensure that detailed records are maintained of the
source, use and final disposal of all animals
accommodated in the establishment for scientific
purposes and that these records are available for
inspection by the Minister for Health or an inspector
appointed by the Minister.
 33 In that connection, it must be pointed out that Article
11 of the Directive has not been implemented in full
since the relevant national provisions do not provide for
any form of supervision by a competent authority of the
setting free of animals.”
Classification
Classification generally takes place based on the
environmental risk or environmental state, thus
belonging to various classes, at the same time, provides
a basis for a different scope of obligations
Case C-67/99, Commission vs. Ireland – Natura 2000
Tthe Court stated that designation – classification - of a
SAC territory has four steps, namely:
 the Member State proposes the designation of the
territory,
 the Commission prepares a draft list,
 the Commission subsequently accepts the proposal in
accordance with a specified procedure,
 the Member State designates the territory.
„29 With regard to the obligation to transmit the site list referred to in Article
4(1), first subparagraph, of the directive, the Commission points out that
each Member State's contribution to the setting up of a coherent European
ecological network depends on the representation on its territory of the
natural habitat types and species' habitats listed in Annexes I and II to the
directive respectively. It is clear from the combined provisions of Article 4(1)
of and Annex III to the directive that Member States enjoy a certain margin
of discretion when selecting sites for inclusion in the list. The exercise of
that discretion is, however, in the Commission's view, subject to compliance
with the following three conditions:
 - only criteria of a scientific nature may guide the choice of the sites to be
proposed;
 - the sites proposed must provide a geographical cover which is
homogeneous and representative of the entire territory of each Member
State, with a view to ensuring the coherence and balance of the resulting
network. The list to be submitted by each Member State must therefore
reflect the ecological variety (and, in the case of species, the genetic
variety) of the natural habitats and species present within its territory;
 - the list must be complete, that is to say, each Member State must propose
a number of sites which will ensure sufficient representation of all the
natural habitat types listed in Annex I and all the species' habitats listed in
Annex II to the directive which exist on its territory.”
Case C-280/02, Commission vs. Republic of France
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67
The French Government does not dispute that nutrient inputs, in particular
nitrogen, from urban sources transported by the Vilaine river play an important role in
eutrophication of the bay.

68
It maintains that it has already classified the Vilaine catchment basin as an
area sensitive to eutrophication, so that all agglomerations with a p.e. of more than
10 000 which discharge their effluent into that basin are subject to the provisions of
Directive 91/271. The identification of Vilaine bay as an area sensitive to
eutrophication is of no importance, inasmuch as no agglomeration with a p.e. of more
than 10 000 discharges directly into that bay and, contrary to what the Commission
maintains, fluvial inputs from the Loire would not have any influence on that bay, so
that the French Government takes the view that it has not failed to fulfil its obligations.

69
In that regard, even if no agglomeration with a p.e. of more than 10 000
discharges directly into Vilaine bay and, contrary to what the Commission maintains,
fluvial inputs from the Loire do not have any influence on that bay, the fact that the
catchment basin of the Vilaine river has already been identified as an area sensitive
to eutrophication does not warrant not also classifying that bay as such. It follows
from Article 5(1) of Directive 91/271, in conjunction with Annex II.A(a), that Member
States are required to identify as sensitive areas all eutrophic water bodies.

70
Therefore, by failing to identify Vilaine bay as an area sensitive to
eutrophication within the meaning of Directive 91/271, the French Republic has failed
to fulfil its obligations.”
Authorisation, Permission
Council Directive 96/61/EC determining the system of
integrated pollution prevention and control is a good
example of how the directive determines the definition of
permit in paragraph 9 of Article 2:
„'permit` shall mean that part or the whole of a written
decision (or several such decisions) granting
authorization to operate all or part of an installation,
subject to certain conditions which guarantee that the
installation complies with the requirements of this
Directive. A permit may cover one or more installations
or parts of installations on the same site operated by the
same operator.”
EIA – development consent
Case C-290/03, preliminary ruling based on a submission by Diane Barker

„38 By its first question, the national court essentially asks whether classification of
a decision as a ‘development consent’ within the meaning of Article 1(2) of Directive
85/337 depends exclusively on national law.

39 Article 1(2) of Directive 85/337 defines ‘development consent’ for the purposes
of the directive as the decision of the competent authority or authorities which entitles
the developer to proceed with the project.

40 Thus, while this term is modelled on certain elements of national law, it remains a
Community concept which, contrary to the submissions of Bromley LBC and the
United Kingdom Government, falls exclusively within Community law. According to
settled case-law, the terms used in a provision of Community law which makes no
express reference to the law of the Member States for the purpose of determining its
meaning and scope are normally to be given throughout the Community an
autonomous and uniform interpretation which must take into account the context of
the provision and the purpose of the legislation in question (see, to this effect, Case
327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I6917, paragraph 43; and Case C-201/02 Wells [2004] ECR I-723, paragraph 37).

41 The answer to the first question must therefore be that classification of a decision
as a ‘development consent’ within the meaning of Article 1(2) of Directive 85/337
must be carried out pursuant to national law in a manner consistent with Community
law.”
Case 240/83, preliminary ruling in the Procureur de la République vs.
Association de défense des brûleurs d'huiles usagées (ADBHU)
case, submitted by the Tribunal de grande instance de Créteil,
 „25 As has already been emphasized, the main aim of the directive
is the disposal of waste oil in a manner which is safe for the
environment, and Article 2 makes it incumbent upon the Member
States to pursue that aim.…
 27 In order to ensure compliance with those measures, Article 6
provides that any undertaking which disposes of waste oils must
obtain a permit granted by the competent national authority, if
necessary after an inspection of the installations, with a view to
imposing the conditions required by the state of technical
development . …
 29 It follows from those provisions that the directive requires
Member States to prohibit any form of waste-oil disposal which has
harmful effects on the environment. It is to that end that the directive
compels Member States to set up an effective system of prior
approval and subsequent inspections.”
Case C-127/02, preliminary ruling - Waddenzee
 „29 The answer to Question 1(a) must therefore be that mechanical
cockle fishing which has been carried on for many years but for
which a licence is granted annually for a limited period, with each
licence entailing a new assessment both of the possibility of carrying
on that activity and of the site where it may be carried on, falls within
the concept of ‘plan’ or ‘project’ within the meaning of Article 6(3) of
the Habitats Directive. …
 36 Authorisation of a plan or project granted in accordance with
Article 6(3) of the Habitats Directive necessarily assumes that it is
considered not likely adversely to affect the integrity of the site
concerned and, consequently, not likely to give rise to deterioration
or significant disturbances within the meaning of Article 6(2). …
 56 It is therefore apparent that the plan or project in question may
be granted authorisation only on the condition that the competent
national authorities are convinced that it will not adversely affect the
integrity of the site concerned.”
Case C-282/02, Commission vs. Ireland

“77 … the argument put forward by Ireland that the prohibitory regime established by the 1977
Act is a ‘more stringent measure’ within the terms of Article 10 of the Directive.

78 Although, in principle, a prohibitory regime constitutes an alternative to an authorisation
system, in accordance with the requirements of the Directive, Ireland has failed to demonstrate
that the prohibitory regime established by the 1977 Act can effectively replace the authorisation
system as envisaged by the Directive.

79 The prohibitory regime set out in section 3(1) of the 1977 Act is accompanied, in section 3(3),
by a clause releasing from liability any person concerned who proves that he took all reasonable
care to prevent pollutants from entering water. Effective application of this regime is guaranteed by
the powers vested in the judicial authorities (section 11) and local authorities (section 12). The
latter section allows local authorities to issue notices to persons responsible for a source of
pollution enjoining them to take specific measures to counter pollution. By contrast, that statute
makes no mention of quality objectives or programmes for the reduction of water pollution.

80 In the first place, the 1977 Act does not contain precise provisions allowing individuals to refer
to a clear, precise and unequivocal legal framework, as required by the Court … the 1977 Act
does not contain an enumeration of the pollutants within the terms of List II of the annex to the
Directive, which prevents those concerned from knowing the true scope of that prohibition.

81 Next, the effectiveness of the system rests in large measure on the notices issued by local
authorities on foot of section 12. Those notices are, however, issued in a discretionary manner by
each local authority in each specific situation, with no relation to any parameter as to water quality,
which is lacking in that statute. This absence of uniform statutory criteria does not guarantee a
homogenous, comprehensive and consistent application of the Directive….

82 Finally, with regard to the exemption clause in section 3(3) of the 1977 Act, that section does
not specify the scope and nature of the measures to be adopted for such an exemption, leaving as
it does to each local authority, each time that a case arises, the assessment of whether the
measures adopted are reasonable. Considered thus, such a system is not equivalent to a system
under which all pollution reduction aspects are defined in advance in a manner which is clear,
precise and unequivocal.
Product classification
Analysis of the products’ life cycle
One of the best examples is the so-called type approval in
the area of EU noise regulation
According to the fundamental principles that appear in the
regulation related to noise and which are derived from
the EU basic structure,
 only the trade and use of those products is allowed and
cannot be restricted within the EU which products meet
the harmonised requirements;
 as a result, the trade and use of the products that meet
the harmonised requirements is free and cannot be
restricted within the EU.
C-132/03, preliminary ruling – GMO
 62 The eighth recital to Regulation No 258/97 states that the
additional specific labelling requirements laid down by the regulation
are intended to ensure that the necessary information about the
foodstuffs in question is available to the consumer. It adds that those
foodstuffs must be safe for human health and that that assurance is
to be provided for by the authorisation procedure set out in Directive
90/220 and/or by the single assessment procedure laid down by
Regulation No 258/97.
 63
The GMOs to which Regulation No 1139/98 refers can be
placed on the market only if they have first been authorised following
a risk assessment intended to ensure that, in the light of the
conclusions of the assessment, they are safe for the consumer. The
precautionary principle, where relevant, is part of such a decisionmaking process (see, to that effect, the judgment in Monsanto
Agricoltura Italia, cited above, paragraph 133).
Prohibition and obligation
Case C-98/03, Commission vs. Federal Republic of Germany

66
According to settled case-law, Articles 12, 13 and 16 of the Directive form a
coherent body of provisions (see, Commission v United Kingdom, paragraph 112).
Articles 12 and 13 require Member States to establish a system of strict protection for
animal and plant species.

67 Paragraph 6(1) of the PflSchG, by listing the situations in which the use of
pesticides is prohibited, does not express in a clear, specific and strict manner the
measures laid down in Articles 12 and 13 of the Directive which prohibit protected
species from being adversely affected.
…

76
It is clear from the file that, when the period set down in the reasoned opinion
expired, Bremen’s legislation authorised, inter alia, the capture of fish all year round
so long as no fishing bans were issued. Coregonus oxyrhynchus is not the subject of
a fishing ban. In Brandenburg neither that species nor unio crassus are the subject of
a fishing ban. As to Bremen’s legislation, the German Government has acknowledged
that it is not in accordance with the Directive.…

78
In those circumstances, it must be stated that the legislative framework existing
in Germany, in which regional provisions which infringe Community law coexist with a
Federal law which complies with it, does not ensure effectively, and in a clear and
precise manner, in respect of the three animal species at issue in this case, the strict
protection required by Article 12(1)(a) of the Directive, with respect to the prohibition
of all forms of deliberate capture and killing of specimens of those species in the
wild.”
Control, monitoring
Case C-6/04, Commission vs. United Kingdom

„21 Under the third paragraph of Article 249 EC, a directive is binding, as to the result to be
achieved, upon each Member State to which it is addressed, but leaves to the national authorities
the choice of form and methods for implementing the directive in question in domestic law.
However, in accordance with settled case-law, while the transposition of a directive into domestic
law does not necessarily require that the content of the directive be incorporated formally and
verbatim in express, specific legislation and, depending on its content, a general legal context
may be adequate for the purpose, that is on condition that that context does indeed guarantee the
full application of the directive in a sufficiently clear and precise manner …

23 The United Kingdom’s argument that the most appropriate way of implementing the Habitats
Directive is to confer specific powers on nature conservation bodies and to impose on them the
general duty to exercise their functions so as to secure compliance with the requirements of that
directive cannot be upheld.

24 First, it is to be remembered that the existence of national rules may render transposition by
specific legislative or regulatory measures superfluous only if those rules actually ensure the full
application of the directive in question by the national authorities.

25 Second, it is apparent from the 4th and 11th recitals in the preamble to the Habitats Directive
that threatened habitats and species form part of the European Community’s natural heritage and
that the threats to them are often of a transboundary nature, so that the adoption of conservation
measures is a common responsibility of all Member States. Consequently, as the Advocate
General has observed in point 11 of her Opinion, faithful transposition becomes particularly
important in an instance such as the present one, where management of the common heritage is
entrusted to the Member States in their respective territories …

26 It follows that, in the context of the Habitats Directive, which lays down complex and technical
rules in the field of environmental law, the Member States are under a particular duty to ensure
that their legislation intended to transpose that directive is clear and precise, including with regard
to the fundamental surveillance and monitoring obligations, such as those imposed on national
authorities by Articles 11, 12(4) and 14(2) of the directive.”
Voluntary instruments


On November 27, 1996, the Commission adopted the communication on
environmental agreements between environmental authorities and the industry and
on the unilateral assumption of obligations by the industry, which aims at the
promotion of the application of legal instruments.
It is a fundamental requirement that the agreement should be as specific as possible,
and its promotion can be served by, among others, the determination of specific
quantitative objectives. The communication outlines directives for agreements to be
made between authorities and the industry in the area of environmental protection.
The regulation on packaging waste (94/62/EC) is a good example of the significance of
voluntary instruments. Already in its preamble, it indicates the application of these
possibilities:

„Whereas the management of packaging and packaging waste requires the Member
States to set up return, collection and recovery systems; whereas such systems
should be open to the participation of all interested parties and be designed to avoid
discrimination against imported products and barriers to trade or distortions of
competition and to guarantee the maximum possible return of packaging and
packaging waste, in accordance with the Treaty;”

The definition of voluntary agreement that is included among the definitions of Article
3(12):

“12. 'voluntary agreement` shall mean the formal agreement concluded between the
competent public authorities of the Member State and the economic sectors
concerned, which has to be open to all partners who wish to meet the conditions of
the agreement with a view to working towards the objectives of this Directive.”
EMAS
REGULATION (EC) No 1221/2009 OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 25 November 2009 on the voluntary participation by organisations in a
Community eco-management and audit scheme (EMAS)

(8)Organisations should be encouraged to participate in EMAS on a voluntary basis
and may gain added value in terms of regulatory control, cost savings and public
image provided that they are able to demonstrate an improvement of their
environmental performance.
Article 1 Objective

A Community eco-management and audit scheme, hereinafter referred to as ‘EMAS’,
is hereby established, allowing voluntary participation by organisations located inside
or outside the Community.

The objective of EMAS, as an important instrument of the Sustainable Consumption
and Production and Sustainable Industrial Policy Action Plan, is to promote
continuous improvements in the environmental performance of organisations by the
establishment and implementation of environmental management systems by
organisations, the systematic, objective and periodic evaluation of the performance of
such systems, the provision of information on environmental performance, an open
dialogue with the public and other interested parties and the active involvement of
employees in organisations and appropriate training.
Economic instruments
Case C-213/96, preliminary ruling - Outokumpu Oy case
„30.
As regards the compatibility of such a duty with Article 95 of the
Treaty, it is settled case-law, first, that in its present state of
development Community law does not restrict the freedom of each
Member State to establish a tax system which differentiates
between certain products, even products which are similar within the
meaning of the first paragraph of Article 95 of the Treaty, on the
basis of objective criteria, such as the nature of the raw materials
used or the production processes employed. Such differentiation is
compatible with Community law, however, only if it pursues
objectives which are themselves compatible with the requirements
of the Treaty and its secondary legislation, and if the detailed rules
are such as to avoid any form of discrimination, direct or indirect,
against imports from other Member States or any form of protection
of competing domestic products.”
Case C-201/08, preliminary ruling, Plantanol

35
It must be pointed out that Directive 2003/30 also does not impose any
requirements on the Member States in regard to the method of attaining those
indicative targets, but leaves them freedom of choice in this regard as to the type of
measures to be adopted, thus leaving them a wide discretion to take account, in
particular, of the availability of resources and raw materials and of national policies to
promote biofuels, as can be seen from recital 20 to the directive.

36
It follows that the provisions of Directive 2003/30 do not require the Member
States to introduce, or maintain in force, a tax exemption scheme for biofuels. It is
clear in that regard from recital 19 to the directive that, although a tax exemption
scheme is one of the means available to the Member States for attaining the
objectives laid down in the directive, other means may also be envisaged, such as
financial assistance for the processing industry and the establishment of a
compulsory rate of biofuels for oil companies.

37
Moreover, it is apparent from Article 3(4) of Directive 2003/30 that the Member
States also enjoy a wide discretion with regard to the products which they wish to
promote in order to attain the objectives laid down in the directive, since they may
choose to give priority to the promotion of certain types of fuels by taking account of
their overall cost-effective climate and environmental balance, while also taking into
account competitiveness and security of supply.

38
In those circumstances, it must be decided that no right to a tax exemption can
be deduced from the provisions of the directive, particularly in regard to a specific
product.

39
Quite the contrary, it is clear from Article 1 of Directive 2003/96 that the
Member States are, in principle, required to tax a product such as the one at issue in
the main proceedings, …

40
However, Article 16(1) of Directive 2003/96 provides that the Member States
may apply an exemption or a reduced rate of taxation on such energy products …
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Case C-254/08, Futura Immobiliare srl Hotel Futura, and others
19
Futura Immobiliare and Others are hotel businesses in the municipality of
Casoria. On that basis, they must pay the waste tax. However, under the latter tax,
hoteliers are taxed more heavily than individuals occupying residential premises.
44
Accordingly, in circumstances such as those in the main proceedings, where
holders of waste have it handled by a collector, Article 15(a) of Directive 2006/12
provides that, in accordance with the ‘polluter pays’ principle, the cost of disposing of
the waste must be borne by those holders.
54
In that regard, it must be found that, when calculating a waste disposal tax or
charge, a distinction drawn for fiscal purposes between categories of users of the
urban waste collection and disposal service – like that drawn by the national
legislation at issue in the main proceedings between hotel undertakings and
individuals – which is based on objective criteria having a direct relationship with the
cost of the service, such as their waste-production capacity or the nature of the waste
produced, may prove appropriate for achieving the objective of financing the service.
55
While the distinction drawn for fiscal purposes must not go beyond what is
necessary in order to achieve that financing objective, it is however to be noted that
here, as Community law currently stands, the competent national authorities have a
broad discretion when determining the manner in which such a tax or charge is
calculated.