2. Court of Justice of the European Union (CJEU)

2. Court of Justice of the European Union (CJEU) This annual report aims to give an overview of the most important developments with respect to environmental jurisprudence of the CJEU within the year 2016 based on official data and statistics available at the CJEU’s website. In order to tame the large volume of relevant jurisprudence, a further classification of the available environmental case law into detailed subject matters was attempted, and priority was given to judgments of the Court of Justice as opposed to judgments of the General Court. A summary presentation of selected rulings follows. (1) European Union Emissions Trading System (EU ETS) The Court ruled on ten requests for preliminary ruling and four actions for annulment relating to the EU ETS in 2016. Most importantly, the following cases should be mentioned. In its judgment in Case C-191/14, Borealis Polyolefine (ECLI:EU:C:2016:311), the Court ruled jointly on a number of requests for a preliminary ruling dealing with two Commission decisions (EU Decisions 2011/278 and 2013/448) determining the maximum annual amount of free allowances for greenhouse gas (GHG) emissions (allowances). The judgment also dealt with the uniform cross-sectoral correction factor (the correction factor) in cases where the annual quantity of free allowances allocated provisionally by member states is greater than the maximum amount of free allowances determined by the Commission. According to Article 10(a)(5) of EC Directive 2003/87 Establishing a Scheme for GHG Emission Allowance Trading within the Community, the correction factor is applied in order to make those values equal and to reduce the number of allowances allocated provisionally by the national authorities. The requests for a preliminary ruling have been made on the basis of proceedings between GHG-emitting undertakings and the national authorities of Italy, the Netherlands, and Austria that are entrusted with allocating allowances. In regard to the validity of the first Commission decision in question (EU Decision 2011/278), the Court first found that the exclusion of emissions from electricity generators in the determination of the maximum annual amount of allowances is a valid practice that is in accordance with Directive 2003/87. Unlike emissions generated by industrial installations, the emissions from electricity generators are not to be taken into account for the determination of the maximum annual amount of allowances. The Commission has no discretion in this regard. In regard to the validity of the second Commission decision in question (EU Decision 2013/448), the Court noted that, when establishing the maximum annual amount of allowances serving as the basis for calculating the allowances allocated free of charge, the Commission is required to take into account only emissions from installations included in the Community system from 2013 onwards. In this respect, the Commission should ensure that member states communicate the relevant data to it, or request the necessary corrections to be made in the data already provided, in order to be able to correctly determine the maximum annual amount of allowances and, consequently, the correction factor. In the case at hand, the Commission had taken into account the data of certain member states that concerned emissions generated by new activities carried out in installations already subject to the allowance trading scheme before 2013. Therefore, the Court ruled that Article 4 and Annex II of EU Commission Decision 2013/448, concerning national implementation measures for the transitional free allocation of GHG emission allowances, are invalid in this respect. In order to uphold legal certainty and to avoid any serious repercussions on a high number of legal relations entered into in good faith during the period up until the date of delivery of this judgment, the Court declared that the annulment of EU Commission Decision 2013/448 is not to affect definitive allocations that have already taken place in the member states. However, for the period following the date of delivery of the judgment, the declaration of invalidity creates a temporary legal vacuum that is capable of interrupting the implementation of the allowance trading scheme. Thus, the Court declared that this judgment will not produce effects until ten months following the date of delivery of the judgment so as to enable the Commission to adopt the necessary measures. Measures adopted during this period on the basis of the invalidated provisions cannot be called into question. In Case C-461/15, E.ON Kraftwerke (ECLI:EU:C:2016:648), the Court ruled that Article 24(1) of EU Commission Decision 2011/278 must be interpreted as not precluding a member state from requiring the GHG-emitting undertakings receiving a free allocation of allowances to provide information relating to all planned or effective changes to the capacity, activity level, and operation of an installation, without limiting that requirement solely to information relating to changes that would affect the allocation. A coal storage site such as the one at issue in the main proceedings in Case C-158/15, Elektriciteits Produktiemaatschappij Zuid-Nederland (ECLI:EU:C:2016:422), where it is not apparent whether the thermal input of a storage site exceeds the threshold of 20 megawatts set by Annex I to EC Directive 2003/87, is to be considered part of an installation within the meaning of Article 3(e) of that directive only if the coal storage activity fulfils the criteria laid down by that provision for activities other than those mentioned in Annex I of the directive. Such will be the case if that activity is directly associated with the combustion activity of the power plant, if it has a technical connection with the activities carried out on the site of that power plant and if it could have an effect on emissions and pollution. In the case at hand, the Court ruled that a fuel storage site of a coal-fired power plant is part of an ‘installation’ within the meaning of that provision given the fact that, first, the coal was essential to the functioning of the power plant and, thus, the storage was directly associated with that plant’s activity. Such a connection should be assumed if the relevant activity is integrated into the same technical process as the power plant’s combustion activity. Second, the Court also pointed out that the coal storage activity at issue in the main proceedings emitted GHGs by a natural self-heating process, with the result that that activity could have an effect on emissions and pollution within the meaning of Article 3(e) of EC Directive 2003/87. Finally, the Court held that, according to the first subparagraph of Article 27(2) of EU Regulation no. 601/2012 on the Monitoring and Reporting of GHG Emissions pursuant to EC Directive 2003/87, the coal lost as a result of the process by which it naturally self-heats while in storage on a site that is part of an installation cannot be regarded as coal exported from that installation. Furthermore, in Case C-457/15, Vattenfall Europe Generation (ECLI:EU:C:2016:613), the Court ruled that, insofar as Annex I to EC Directive 2003/87 includes the ‘combustion of fuels in installations with a total rated thermal input exceeding 20 MW’ in the list of categories of activities to which that directive applies, it must be interpreted as meaning that the emissions-trading obligation of an installation for the generation of electricity starts on the date of the first emissions of GHGs and, thus, potentially before the date of the first generation of electricity. In Case C-272/15, Swiss International Air Lines (ECLI:EU:C:2016:993), the Court examined the validity of EC Decision no. 377/2013 in light of the principle of equal treatment since the temporary derogation provided for by Article 1 of that decision from the requirements imposed by Articles 12(2a) and 16 of EC Directive 2003/87—with respect to the surrender of GHG emission allowances for flights operated in 2012 between EU member states and the majority of third countries (countries outside the EU)—does not apply to flights to and from airports situated in Switzerland. In its reasoning, the Court highlighted that external relations of the EU are conducted by means of a wide range of measures that are not confined to measures adopted with respect to all third countries and may therefore also concern only one or several third countries. In this regard, the Court stressed that the institutions and agencies of the Union are relieved of any obligation to apply the principle of equal treatment to third countries in order to maintain their internal freedom of action in terms of policy. In addition, the Court stated that EU law imposes no express obligation on the Union to the effect that all third countries must be treated equally. Furthermore, public international law contains no general principle of equal treatment of third countries. Since an application of the principle of equal treatment of third countries would unilaterally restrict the Union’s freedom of action internationally, it cannot be held that the Union could have accepted such a requirement unless the equal treatment of third countries was expressly laid down in the treaties. In accordance with the Court’s settled case law and the Treaty for the Functioning of the European Union (TFEU), there is no general principle obliging the Union, in its external relations, to accord equal treatment to different third countries in all respects, and traders do not, in any event, have the right to rely on the existence of such a principle. Therefore, the Court held that its examination in the case at hand has disclosed nothing to affect the validity of EC Decision no. 377/2013. (2) Nature and Biodiversity In regard to nature and biodiversity, the Court ruled on three requests for preliminary ruling and three actions for failure to fulfil obligations. In addition, EC Regulation no. 511/2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization in the union, or the Access and Benefit Sharing Regulation, was the subject of an action for annulment in Case C-408/15 P. (A) Birds and Habitats Directives In Case C-504/14, Commission v Greece (ECLI:EU:C:2016:847), the Court found that Greece had failed to fulfil its obligations to protect the sea turtle Caretta caretta in the Bay of Kyparissia. In 2006, the Dunes of Kyparissia (Thines Kyparissias) were included in the list of sites of Community importance (SCIs). Inclusion in the list of SCIs indicates the presence on the designated site of at least one priority natural habitat type and/or priority species within the meaning of Article 1 of EC Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive). In the context of this directive, member states must take all measures necessary to establish a system of strict protection of certain animal species. The turtle Caretta caretta is recognized by that directive as an animal species of community interest that is in need of strict protection. In the case at hand, the Commission brought an action against Greece before the Court for failure to fulfil obligations under the directive. The Court largely upheld the Commission’s action and considered that certain infrastructure such as, for instance, building projects and residential construction, as well as their subsequent use, are liable to have a significant effect on the habitats in the Kyparissia area. Similarly, the construction and use of such infrastructure, particularly because of the noise, light, and human presence entailed, are likely––as are ‘wild’ camping and the operation of bars––to significantly disturb the Caretta caretta sea turtle during breeding. In addition, unregulated car parking and the asphalting of certain tracks cause damage to the turtles’ dune habitats, exacerbating noise and light and disturbing them during egg laying and at the time the young turtles hatch. The Court also found that light from restaurants, hotels, and shops located around the Kyparissia area also disturbs the turtles. The Court further stated that the finding of such infringements gives reason to suppose that a comprehensive and coherent preventive legislative framework was lacking in the Kyparissia area during the period of the pre-litigation procedure. The supposition that the national legislative framework was incomplete is confirmed by the fact that Greece adopted certain legal acts after the procedure was initiated by the Commission. Finally, the Court noted that those responsible for the disturbance associated with the building projects at least accepted the possibility of the Caretta caretta turtle being disturbed during its breeding period; the disturbance was thus deliberate and prohibited by EU law. In two other cases—namely in Case C-461/14, Commission v Spain (ECLI:EU:C:2016:895) and in Case C-141/14, Commission v Bulgaria (ECLI:EU:C:2016:8)—the Court declared that Spain and Bulgaria had failed to fulfil their obligations arising under the Habitats Directive, EC Directive 2009/147 on the Conservation of Wild Birds (Birds Directive), and EU Directive 2011/92 on the Assessment of the Effects of Certain Public and Private Projects on the Environment (EIA Directive). In particular, in Case C-461/14, the Court found that Spain had failed to take appropriate steps to avoid the deterioration of natural habitats and the disturbance of the species for which the special protection area ‘Campiñas de Sevilla’ was established. Likewise, in Case C-141/14, the Court found that Bulgaria failed to fulfil its obligations under the Habitats Directive by neither: (1) including all important bird territories in the special protection area covering the Kaliakra region; (2) classifying as special protection areas the most suitable territories in the Kaliakra region in number and size; nor (3) properly assessing the cumulative negative effect of several energy, tourism, and other projects in that region before approving their implementation. The request for a preliminary ruling in Case C-399/14, Grüne Liga Sachsen and Others (ECLI:EU:C:2016:10), concerned the interpretation of Article 6(2) to (4) of the Habitats Directive and was submitted in proceedings regarding a decision taken by authorities of the Free State of Saxony approving the construction of a bridge over the River Elbe in Dresden, Germany. The plans for the construction of the road bridge were approved in February 2004. The decision approving those plans, which was immediately enforceable, was based on a flora, fauna, and habitat impact study carried out in January 2003 in relation to the implications of the construction project for the preservation objectives of the site. In carrying out that study, which concluded that the construction project at issue in the main proceedings would have no significant or permanent adverse effects, the competent authority sought to rely on the requirements of Article 6(3) and (4) of the Habitats Directive. The study, however, did not meet those requirements and was thus merely a preliminary risk assessment. In December 2004, the Commission included the Elbe valley region in question in the list of SCIs referred to in Article 4 of the Habitats Directive. Despite the inclusion, construction work on the road bridge began in November 2007 and was completed in 2013. The bridge was opened to traffic the same year. The questions submitted by the referring court in the case at hand pertained, first, to the conditions under which a project should undergo a subsequent review of its implications under Article 6(2) of the Habitats Directive, in a case where it was authorized to be carried out on a site before the site’s inclusion in the list of SCIs. Second, the referring court made a request for the criteria that should be applicable in a case of such a subsequent review. The Court held first that a plan or project authorized following a study that did not meet the requirements of Article 6(3) of the Habitats Directive must be the subject of a subsequent review by the competent authorities, as this review constitutes the only appropriate step in order to avoid that the implementation of the plan or project will result in a significant deterioration of natural habitats and in disturbance of the species for which the areas have been designated. This subsequent review must be carried out in accordance with the requirements of Article 6(3) of that directive and must take into account all factors existing at the date of inclusion in the list of SCIs and all implications arising or likely to arise following the partial or total implementation of the plan or project on the site in question after that date. The Court further ruled that the requirements for a new assessment of the implications for the site concerned, carried out in order to rectify errors identified in relation to a prior assessment, may not be amended on account of the fact that the decision approving that plan or project was immediately enforceable, an application for interim measures had been dismissed, or the dismissal decision was no longer open to appeal. Should a new assessment conclude that the construction or entry into service of the bridge at issue in the main proceedings has already caused—or risks causing—deterioration or disturbance that could be significant in relation to the objectives of the Habitats Directive, the possibility nevertheless remains of applying Article 6(4) of that directive by analogy. Pursuant to this article, if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest—including those of a social or economic nature—and there are no alternative solutions, the member state is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. Lastly, the Court held that Article 6(4) of the Habitats Directive must be interpreted as meaning that the requirements of the check made in the context of the review of ‘alternative solutions’ may not be amended on account of the fact that the plan or project has already been implemented. In regard to the review of alternative solutions, the Court pointed out that the search for an alternative should not disregard any deterioration or disturbance caused by the construction, entry into service of the structure, or any advantages it offers. On the contrary, the examination of alternative solutions requires weighing the environmental consequences of maintaining or restricting the use of the works at issue, including closure or even demolition, on the one hand, against the important public interest that led to their construction, on the other. (B) Sharing Nature’s Genetic Resources In Case C-408/15, P Ackermann Saatzucht and Others v Parliament and Council (ECLI:EU:C:2016:893), the appellants—seventeen German undertakings, one natural person of German nationality, and sixteen Dutch undertakings—all active in the plant-breeding sector, sought the annulment of the Access and Benefit Sharing Regulation. The Court dismissed the appeals in their entirety and confirmed the General Court’s order under appeal by ruling that these operators were not individually concerned by the contested regulation, as that regulation could not be classified as a regulatory act within the meaning of the fourth paragraph of Article 263 of the TFEU. The Court, however, also highlighted that the application of Article 4 of the contested regulation presupposes the adoption of legislative or regulatory provisions by member states. Consequently, even though the appellants cannot, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 of the TFEU, challenge that regulation directly before the EU judicature, they can, in principle, contend that it is invalid before the national courts and cause the latter to subsequently refer questions to the Court of Justice for a preliminary ruling, pursuant to Article 267 of the TFEU. (3) United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) and the EU: Right of Access to Environmental Documents In 2016, the Court ruled on the right of access to environmental documents in two judgments: the first within the framework of an appeal against a judgment of the General Court and the second within the preliminary reference procedure. More specifically, in the Commission v Stichting Greenpeace Nederland and PAN Europe judgment (Case C-673/13 P, ECLI:EU:C:2016:889), two associations submitted a request to the Commission for access to a number of documents relating to the initial marketing authorization for glyphosate, one of the most widely used herbicides in the world for agricultural weeding and maintenance of urban and industrial areas. The request was based on EC Regulation no. 1367/2006 on the application of the provisions of the Aarhus Convention. The Commission granted access to those documents, with the exception of part of the draft assessment report prepared by Germany. The justification for the refusal stated that the document in question contained confidential information on intellectual property rights of the applicants for the glyphosate authorization (that is, inter alia, the detailed chemical composition of that substance, its manufacturing process, and the impurities and composition of the finished products). The two associations brought an action before the General Court for the annulment of the Commission’s decision. The General Court upheld that action by the judgment of 8 October 2013 (Case T-545/11, ECLI:EU:T:2013:523) and annulled the Commission decision insofar as it refused access to part of the draft assessment report. The General Court considered that certain parts of the document at issue contained information relating to emissions into the environment. Consequently, the Commission was not entitled to invoke the confidentiality of commercial and industrial information and should have granted the associations access to those parts of the document. The Commission launched an appeal against this judgment and asked the Court to set aside the judgment of the General Court. Similarly, in Case C-442/14, Bayer CropScience and Stichting De Bijenstichting (ECLI:EU:C:2016:890), a Dutch bee-protection association submitted a request to the relevant national authority for the disclosure of a number of documents concerning marketing authorizations issued by that authority for certain plant protection products and biocides. Bayer, a company holding a large number of these authorizations, objected to that disclosure on the grounds that it would infringe copyright and adversely affect the confidentiality of commercial or industrial information. Partial disclosure of the documents requested was authorized by that authority with the reasoning that these documents contained information on emissions into the environment, even though the disclosure could have an adverse effect on the confidentiality of commercial or industrial information. According to EC Directive 2003/4 on Public Access to Environmental Information, commercial and industrial confidentiality may not be invoked to preclude the disclosure of such information. In its judgments on these two cases, the Court clarified the notions of ‘emissions into the environment’ and ‘information on emissions into the environment’ within the meaning of EC Regulation no. 1367/2006 and EC Directive 2003/4. In both judgments, the Court found, first, that the concept of ‘emissions into the environment’ includes the release into the environment of products or substances such as plant protection products or biocides or active substances contained in those products, to the extent that such release is actual or foreseeable under normal or realistic conditions of use of the product or substance. Therefore, the concept of ‘emissions into the environment’ cannot be restricted to emissions emanating from industrial installations but also covers emissions resulting from the spraying of a product, such as a plant protection product or biocide, into the air or its use on plants, in water, or on soil. Such limitations would be at odds with the objectives of both the regulation and the directive relating to disclosing environmental information as widely as possible. Second, the Court confirmed that the regulation and directive cover not only information relating to actual emissions—that is to say, emissions that are actually released into the environment when a plant protection product or biocide is used on plants or in soil—but also information on foreseeable emissions from that product into the environment. However, the Court states that the concept of ‘information on emissions into the environment’ does not include information relating to purely hypothetical emissions. In this regard, the Court clarified that the concept must be interpreted as covering not only information on emissions as such (that is to say, information relating to the nature, composition, quantity, date, and place of those emissions) but also information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorized the product or substance in question, is correct, as well as the data relating to the medium- or long-term effects of those emissions on the environment. (4) Waste Six judgments were delivered by the Court in relation to EU waste legislation: three under the preliminary reference procedure and another three on the basis of actions for failure to fulfil obligations directed against Spain, Greece, and Romania. (A) Packaging The judgment in Case C-313/15, Eco-Emballages (ECLI:EU:C:2016:859) concerned two requests for a preliminary ruling on the interpretation of Article 3 of EC Directive 94/62 on Packaging and Packaging Waste. In its judgment, the Court reiterated that the term ‘packaging’ must be given a broad interpretation and that in order to constitute ‘packaging’ within the meaning of the directive, a product must be intended to be used for the containment, protection, handling, delivery, and presentation of goods from the producer to the user or the consumer. In addition, the Court noted that while it is true that roll cores are not intended to contain products, they nevertheless serve as both a support and spool for flexible products and therefore perform the functions of protection and presentation within the meaning of the directive. Since a roll core is designed to constitute, with the flexible product wound around it, a sales unit for the consumer at the point of purchase, it fulfils the definition of primary packaging. In these circumstances, the Court ruled that roll cores in the form of rolls, tubes, or cylinders around which flexible material is wound and sold to consumers constitute ‘packaging’ within the meaning of Article 3 of EC Directive 94/62. (B) Waste Framework Legislation (i) Waste shipments The request for a preliminary ruling in Case C-69/15, Nutrivet (ECLI:EU:C:2016:425) concerns the interpretation of EC Regulation no. 1013/2006 on shipments of waste and has been made in proceedings concerning administrative fines imposed by the competent Hungarian authorities for infringements of the rules on shipments of waste. In its judgment, the Court held that shipments of waste intended for recovery, such as those referred to in Annex III to that regulation, must be considered illegal when the document relating to the shipment, referred to in Annex VII to that same regulation, contains incorrect or inconsistent information, irrespective of: (1) whether that information is given correctly in other documents made available to the competent authorities; (2) the intention to mislead the authorities; or (3) the implementation of the procedures provided for in Article 24 of that same regulation by the authorities. In its judgment, the Court also ruled that penalties imposed by member states in the event of infringement of the provisions of that regulation must be proportionate. In the review of proportionality of such a penalty, the referring court must take particular account of the risks that may be caused by that infringement in the field of protection of the environment and human health. (ii) EC Directive 2008/98 on Waste In Case C-584/14, Commission v Greece (ECLI:EU:C:2016:636), the Court declared that Greece had not complied with the judgment of 10 September 2009 in Case C-286/08, Commission v Greece (EU:C:2009:543), which ordered Greece to adopted a specific plan for the management of hazardous waste, establish an integrated and adequate network of installations for the disposal of hazardous waste, and implement management of ‘historical waste.’ In those circumstances, the Court considered that the imposition of a penalty payment on Greece constitutes an appropriate financial means to ensure full compliance with the judgment and therefore ordered penalty payments and a lump sum to be paid. (C) Landfill of Waste In Case C-454/14, Commission v Spain (ECLI:EU:C:2016:117), the Court declared that Spain had failed to fulfil its obligations under EC Directive 1999/31 on the Landfill of Waste by failing to adopt, for each of the landfill sites at issue, the measures necessary either to (1) request the operator to prepare a conditioning plan and ensure full implementation of that plan in accordance with the requirements of the directive or to (2) close, as soon as possible, the corresponding landfill sites. (D) Mining Waste In Case C-104/15, Commission v Romania (ECLI:EU:C:2016:581), the Court found that, by failing to adopt appropriate measures to prevent pollution from dust particles coming from the Bosneag pond extension belonging to the copper and zinc mining operations of Moldomin at Moldova Noua, Romania had failed to fulfil its obligations under Articles 4 and 13(2) of EC Directive 2006/21 on the Management of Waste from Extractive Industries. The request for a preliminary ruling in Case C-147/15, Edilizia Mastrodonato (ECLI:EU:C:2016:606) related to the interpretation of Article 10(2) of the same EC Directive 2006/21 in conjunction with EC Directive 1999/31. The request has been made in proceedings concerning the authorization regime to which backfilling operations in respect of disused quarries must be subject. In its judgment, the Court reminded member states that, according to Article 2(1) of EC Directive 2006/21, the directive applies to the management of waste resulting from the prospecting, extraction, treatment, and storage of mineral resources and the working of quarries. EC Directive 1999/31, however, applies only to waste that is disposed of, not to waste that is to be recovered. In particular, Article 3(1) of EC Directive 1999/31 provides that it applies to all landfills, which are defined in Article 2(g) of the directive as waste disposal sites for the deposit of waste onto or into land. In this regard, the Court noted that the overall scheme of EC Directive 2006/21 is directed at governing solely the management of waste resulting from extractive industries and, thus, Article 10(2) of this directive may not be interpreted in a way that would result in implicitly broadening the scope of EC Directive 1999/31. It follows from the above that waste other than extractive waste may fall within the scope of EC Directive 1999/31 only if the waste is deposited in landfills for disposal, not if it is to be recovered. The use in landfills of inert waste suitable in redevelopment/restoration and filling in, or for construction purposes, is excluded from the scope of EC Directive 1999/31. (5) Environmental Assessment The Court delivered five judgments on the basis of requests for a preliminary ruling interpreting EC Directive 97/11 on the Assessment of the Effects of Certain Public and Private Projects on the Environment (EIA Directive) and EC Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programs on the Environment (SEA Directive). (A) EIA Directive The request for a preliminary ruling in Case C-645/15, Bund Naturschutz in Bayern and Wilde (ECLI:EU:C:2016:898) concerned the interpretation of the EIA Directive. The request has been made in proceedings concerning the legality of the decision taken by the Land of Bavaria, Germany, to approve the development of certain parts of a road within the municipal area of the City of Nuremberg without having carried out an assessment of the effects of that development on the environment. In the context of this case, the Court pointed out that it is clear from point 7(c) of the directive that the EU legislature intended to restrict the member states’ obligations to make certain road development projects subject to a systematic environmental impact assessment solely to those projects that concern road sections of a significant length—in the present case, a length of at least ten kilometres. Therefore, a road development project that, as in the case in the main proceedings, concerns a stretch of road that is under ten kilometres in length is not, solely because of its nature, among the projects covered by point 7(c) of Annex I to the EIA Directive, even though it consists of the widening or development of an existing road with four or more lanes. In regard to the scope of the concept of ‘express roads,’ whose construction must, according to point 7(b) of Annex I to the directive, be subject to an EIA, the Court noted that ‘express roads’ for the purposes of that provision are roads whose technical characteristics are those set out in the definition in point II.3 of Annex II to the European Agreement on Main International Traffic Arteries, even if those roads do not form part of the network of main international traffic arteries or are located in urban areas. Lastly, in regard to the concept of ‘construction’ for the purposes of point 7(b) of Annex I to the directive, the Court held that it must be interpreted as referring to the carrying-out of works not previously existing or to the physical alteration of existing installations. The judgment in Case C-348/15, Stadt Wiener Neustadt (ECLI:EU:C:2016:882) concerned the interpretation of Article 1(5) of EEC Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, in conjunction with the principles of legal certainty and protection of legitimate expectations. The request for a preliminary ruling was submitted in proceedings between the city of Wiener Neustadt, Austria, and the government of the Land of Lower Austria, concerning the lawfulness of the decision by which the latter took the view that the operation of a substitute fuel treatment plant should be regarded as authorized on the basis of the fact that the time limit for an annulment action before the national courts had elapsed. The national decision had been taken in breach of the obligation to assess its effects on the environment. The Court ruled in this case that a national provision such as the one at issue in the main proceedings, which considers a project as lawfully authorized in regard to the obligation to assess its effects on the environment, and in respect of which the time limit for an action for annulment before the national courts has expired, is not compatible with EEC Directive 85/337. The Court also held that the member state, through its competent authorities, is required to make good any harm caused by the failure to carry out an environmental impact assessment by taking all general or particular measures. (B) SEA Directive The validity of Articles 3(3) of EC Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programs on the Environment was upheld by the Court in the framework of its judgment on Case C-444/15, Associazione Italia Nostra Onlus (ECLI:EU:C:2016:978). The request for a preliminary ruling in this case has been made in proceedings concerning the requirement to carry out an environmental assessment under that directive in the case of a construction project planned for an island in the Venetian Lagoon. In its assessment, the Court recalled that Article 191(1) of the TFEU authorizes the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection, and improvement of the quality of the environment. While it is undisputed that Article 191(2) of the TFEU requires EU policy in environmental matters to aim for a high level of protection for such a level of protection to be compatible with that provision, it does not necessarily have to be the highest that is technically possible. Article 193 of the TFEU authorizes member states to maintain or introduce more stringent protective measures. In view of the need to strike a balance between certain objectives and principles mentioned in Article 191 of the TFEU and the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question of whether the European Parliament and the Council of the EU, by adopting Article 3(3) of the SEA Directive, committed a manifest error of appraisal. In addition, the Court reminded member states that there is a margin of discretion enjoyed by member states pursuant to Article 3(5) of the SEA Directive to specify certain types of plans or programs that are likely to have significant environmental effects. This margin of discretion is limited by the requirement under Article 3(3) of that directive, in conjunction with Article 3(2), to subject the plans or programs likely to have significant effects on the environment to environmental assessment, in particular on account of their characteristics, their effects, and the areas likely to be affected. It is for the member states to take, within the sphere of their competence, all the general or particular measures necessary to ensure that all plans or programs likely to have significant environmental effects are subject, before adoption, to an environmental assessment. In any event, the mere risk that the national authorities, through their conduct, could circumvent the application of the SEA Directive is not such as to render Article 3(3) of that directive invalid. The Court also affirmed that it does not appear, in the present case, that the Parliament and the Council committed a manifest error of assessment in light of Article 191 of the TFEU by adopting Article 3(3) of the SEA Directive, and, therefore, the provision’s validity remains intact. In its judgment in Case C-290/15, D’Oultremont and Others (ECLI:EU:C:2016:816) the Court ruled that the notion of ‘plans and programmes’ within the meaning of Articles 2(a) and 3(2)(a) of the SEA Directive includes regulatory orders containing various provisions on the installation of wind turbines that must be complied with when administrative consent is granted for their installation and operation. In its judgment in Case C-379/15, Association France Nature Environnement (ECLI:EU:C:2016:603), the Court ruled that a national court may—when allowed by domestic law, exceptionally, and on a case-by-case basis—limit, in time, certain effects of a declaration of the illegality of a national provision adopted in disregard of the obligations provided for by SEA Directive, provided that such a limitation is dictated by an overriding consideration linked to environmental protection. That exceptional power may, however, be exercised only if all the conditions stemming from the judgment of 28 February 2012 in Case C-41/11, Inter-Environnement Wallonie and Terre Wallonne (ECLI:EU:C:2012:103) are satisfied. More specifically, these conditions are: that the contested provision of national law constitutes a measure correctly transposing EU law on environmental protection; that the adoption and coming into force of a new provision of national law do not make it possible to avoid the damaging effects on the environment arising from annulment of the contested provision of national law; that annulment of the contested provision of national law would have the effect of creating a legal vacuum concerning the transposition of EU law on environmental protection which would be more damaging to the environment; and that any exceptional maintaining of the effects of the contested provision of national law lasts only for the period strictly necessary for the adoption of the measures making it possible to remedy the irregularity found. (6) Water The Court delivered six judgments: five on actions for failure to fulfil obligations directed against Poland, Austria, Portugal, Spain, and France and one preliminary reference dealing with a number of legal issues regarding EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy (Water Framework Directive) and EEC Directive 91/271 Concerning Urban Waste Water Treatment (Urban Waste Water Directive). (A) Water Framework Directive The judgment in Case C-686/15, Vodoopskrba i odvodnja (ECLI:EU:C:2016:927), following a request for a preliminary ruling submitted by a Croatian court, concerned the refusal of a consumer to pay the fixed component included in the price of his water consumption. In its judgment the Court considered it obvious from the relevant provisions of the national Croatian legislation that this legislation takes account of the principle of recovery in full of the costs connected with the availability and protection of water and the construction, management, and upkeep of the water supply systems. On this basis, the Court ruled that the Water Framework Directive must be interpreted as not precluding national legislation that provides that the price of water services invoiced to the consumer includes not only a variable component calculated according to the volume of water actually consumed by the person concerned but also a fixed component which is not connected with that volume. The Court dismissed the action for failure to fulfil obligations submitted by the Commission in case C-346/14 Commission v Austria (ECLI:EU:C:2016:322). Contrary to the Commission’s assertions relating to failure to implement the necessary measures to prevent deterioration of the status of the body of surface water on the Schwarze Sulm, the Court ruled that the competent national authority of the Austrian Province of Styria had conducted a detailed and specific scientific analysis of the contested project of construction of a hydropower plant, had included the direct and indirect impact of the project in the analysis, and had weighed up the advantages vis-à-vis the negative impact of the project in relation to the objectives of the Water Framework Directive. (B) Urban Waste Water Directive In three cases—namely, Case C-398/14, Commission v Portugal (ECLI:EU:C:2016:61), Case C-38/15, Commission v Spain (ECLI:EU:C:2016:156), and Case C-314/15, Commission v France (ECLI:EU:C:2016:887)—the Court found that Portugal, Spain, and France had failed to fulfil their obligations under the Urban Waste Water Directive, as amended by EC Regulation no. 1137/2008, insofar as they failed to ensure that discharges from urban waste water treatment plants were subject to an adequate level of treatment. (7) Industrial Emissions The judgment on the action for failure to fulfil obligations in Case C-304/15, Commission v United Kingdom (ECLI:EU:C:2016:706) declared that the United Kingdom failed to correctly apply EC Directive 2001/80 on the Limitation of Emissions of Certain Pollutants into the Air from Large Combustion Plants (Large Combustion Plants Directive) to Aberthaw Power Station. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

2. Court of Justice of the European Union (CJEU)

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Abstract

This annual report aims to give an overview of the most important developments with respect to environmental jurisprudence of the CJEU within the year 2016 based on official data and statistics available at the CJEU’s website. In order to tame the large volume of relevant jurisprudence, a further classification of the available environmental case law into detailed subject matters was attempted, and priority was given to judgments of the Court of Justice as opposed to judgments of the General Court. A summary presentation of selected rulings follows. (1) European Union Emissions Trading System (EU ETS) The Court ruled on ten requests for preliminary ruling and four actions for annulment relating to the EU ETS in 2016. Most importantly, the following cases should be mentioned. In its judgment in Case C-191/14, Borealis Polyolefine (ECLI:EU:C:2016:311), the Court ruled jointly on a number of requests for a preliminary ruling dealing with two Commission decisions (EU Decisions 2011/278 and 2013/448) determining the maximum annual amount of free allowances for greenhouse gas (GHG) emissions (allowances). The judgment also dealt with the uniform cross-sectoral correction factor (the correction factor) in cases where the annual quantity of free allowances allocated provisionally by member states is greater than the maximum amount of free allowances determined by the Commission. According to Article 10(a)(5) of EC Directive 2003/87 Establishing a Scheme for GHG Emission Allowance Trading within the Community, the correction factor is applied in order to make those values equal and to reduce the number of allowances allocated provisionally by the national authorities. The requests for a preliminary ruling have been made on the basis of proceedings between GHG-emitting undertakings and the national authorities of Italy, the Netherlands, and Austria that are entrusted with allocating allowances. In regard to the validity of the first Commission decision in question (EU Decision 2011/278), the Court first found that the exclusion of emissions from electricity generators in the determination of the maximum annual amount of allowances is a valid practice that is in accordance with Directive 2003/87. Unlike emissions generated by industrial installations, the emissions from electricity generators are not to be taken into account for the determination of the maximum annual amount of allowances. The Commission has no discretion in this regard. In regard to the validity of the second Commission decision in question (EU Decision 2013/448), the Court noted that, when establishing the maximum annual amount of allowances serving as the basis for calculating the allowances allocated free of charge, the Commission is required to take into account only emissions from installations included in the Community system from 2013 onwards. In this respect, the Commission should ensure that member states communicate the relevant data to it, or request the necessary corrections to be made in the data already provided, in order to be able to correctly determine the maximum annual amount of allowances and, consequently, the correction factor. In the case at hand, the Commission had taken into account the data of certain member states that concerned emissions generated by new activities carried out in installations already subject to the allowance trading scheme before 2013. Therefore, the Court ruled that Article 4 and Annex II of EU Commission Decision 2013/448, concerning national implementation measures for the transitional free allocation of GHG emission allowances, are invalid in this respect. In order to uphold legal certainty and to avoid any serious repercussions on a high number of legal relations entered into in good faith during the period up until the date of delivery of this judgment, the Court declared that the annulment of EU Commission Decision 2013/448 is not to affect definitive allocations that have already taken place in the member states. However, for the period following the date of delivery of the judgment, the declaration of invalidity creates a temporary legal vacuum that is capable of interrupting the implementation of the allowance trading scheme. Thus, the Court declared that this judgment will not produce effects until ten months following the date of delivery of the judgment so as to enable the Commission to adopt the necessary measures. Measures adopted during this period on the basis of the invalidated provisions cannot be called into question. In Case C-461/15, E.ON Kraftwerke (ECLI:EU:C:2016:648), the Court ruled that Article 24(1) of EU Commission Decision 2011/278 must be interpreted as not precluding a member state from requiring the GHG-emitting undertakings receiving a free allocation of allowances to provide information relating to all planned or effective changes to the capacity, activity level, and operation of an installation, without limiting that requirement solely to information relating to changes that would affect the allocation. A coal storage site such as the one at issue in the main proceedings in Case C-158/15, Elektriciteits Produktiemaatschappij Zuid-Nederland (ECLI:EU:C:2016:422), where it is not apparent whether the thermal input of a storage site exceeds the threshold of 20 megawatts set by Annex I to EC Directive 2003/87, is to be considered part of an installation within the meaning of Article 3(e) of that directive only if the coal storage activity fulfils the criteria laid down by that provision for activities other than those mentioned in Annex I of the directive. Such will be the case if that activity is directly associated with the combustion activity of the power plant, if it has a technical connection with the activities carried out on the site of that power plant and if it could have an effect on emissions and pollution. In the case at hand, the Court ruled that a fuel storage site of a coal-fired power plant is part of an ‘installation’ within the meaning of that provision given the fact that, first, the coal was essential to the functioning of the power plant and, thus, the storage was directly associated with that plant’s activity. Such a connection should be assumed if the relevant activity is integrated into the same technical process as the power plant’s combustion activity. Second, the Court also pointed out that the coal storage activity at issue in the main proceedings emitted GHGs by a natural self-heating process, with the result that that activity could have an effect on emissions and pollution within the meaning of Article 3(e) of EC Directive 2003/87. Finally, the Court held that, according to the first subparagraph of Article 27(2) of EU Regulation no. 601/2012 on the Monitoring and Reporting of GHG Emissions pursuant to EC Directive 2003/87, the coal lost as a result of the process by which it naturally self-heats while in storage on a site that is part of an installation cannot be regarded as coal exported from that installation. Furthermore, in Case C-457/15, Vattenfall Europe Generation (ECLI:EU:C:2016:613), the Court ruled that, insofar as Annex I to EC Directive 2003/87 includes the ‘combustion of fuels in installations with a total rated thermal input exceeding 20 MW’ in the list of categories of activities to which that directive applies, it must be interpreted as meaning that the emissions-trading obligation of an installation for the generation of electricity starts on the date of the first emissions of GHGs and, thus, potentially before the date of the first generation of electricity. In Case C-272/15, Swiss International Air Lines (ECLI:EU:C:2016:993), the Court examined the validity of EC Decision no. 377/2013 in light of the principle of equal treatment since the temporary derogation provided for by Article 1 of that decision from the requirements imposed by Articles 12(2a) and 16 of EC Directive 2003/87—with respect to the surrender of GHG emission allowances for flights operated in 2012 between EU member states and the majority of third countries (countries outside the EU)—does not apply to flights to and from airports situated in Switzerland. In its reasoning, the Court highlighted that external relations of the EU are conducted by means of a wide range of measures that are not confined to measures adopted with respect to all third countries and may therefore also concern only one or several third countries. In this regard, the Court stressed that the institutions and agencies of the Union are relieved of any obligation to apply the principle of equal treatment to third countries in order to maintain their internal freedom of action in terms of policy. In addition, the Court stated that EU law imposes no express obligation on the Union to the effect that all third countries must be treated equally. Furthermore, public international law contains no general principle of equal treatment of third countries. Since an application of the principle of equal treatment of third countries would unilaterally restrict the Union’s freedom of action internationally, it cannot be held that the Union could have accepted such a requirement unless the equal treatment of third countries was expressly laid down in the treaties. In accordance with the Court’s settled case law and the Treaty for the Functioning of the European Union (TFEU), there is no general principle obliging the Union, in its external relations, to accord equal treatment to different third countries in all respects, and traders do not, in any event, have the right to rely on the existence of such a principle. Therefore, the Court held that its examination in the case at hand has disclosed nothing to affect the validity of EC Decision no. 377/2013. (2) Nature and Biodiversity In regard to nature and biodiversity, the Court ruled on three requests for preliminary ruling and three actions for failure to fulfil obligations. In addition, EC Regulation no. 511/2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization in the union, or the Access and Benefit Sharing Regulation, was the subject of an action for annulment in Case C-408/15 P. (A) Birds and Habitats Directives In Case C-504/14, Commission v Greece (ECLI:EU:C:2016:847), the Court found that Greece had failed to fulfil its obligations to protect the sea turtle Caretta caretta in the Bay of Kyparissia. In 2006, the Dunes of Kyparissia (Thines Kyparissias) were included in the list of sites of Community importance (SCIs). Inclusion in the list of SCIs indicates the presence on the designated site of at least one priority natural habitat type and/or priority species within the meaning of Article 1 of EC Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive). In the context of this directive, member states must take all measures necessary to establish a system of strict protection of certain animal species. The turtle Caretta caretta is recognized by that directive as an animal species of community interest that is in need of strict protection. In the case at hand, the Commission brought an action against Greece before the Court for failure to fulfil obligations under the directive. The Court largely upheld the Commission’s action and considered that certain infrastructure such as, for instance, building projects and residential construction, as well as their subsequent use, are liable to have a significant effect on the habitats in the Kyparissia area. Similarly, the construction and use of such infrastructure, particularly because of the noise, light, and human presence entailed, are likely––as are ‘wild’ camping and the operation of bars––to significantly disturb the Caretta caretta sea turtle during breeding. In addition, unregulated car parking and the asphalting of certain tracks cause damage to the turtles’ dune habitats, exacerbating noise and light and disturbing them during egg laying and at the time the young turtles hatch. The Court also found that light from restaurants, hotels, and shops located around the Kyparissia area also disturbs the turtles. The Court further stated that the finding of such infringements gives reason to suppose that a comprehensive and coherent preventive legislative framework was lacking in the Kyparissia area during the period of the pre-litigation procedure. The supposition that the national legislative framework was incomplete is confirmed by the fact that Greece adopted certain legal acts after the procedure was initiated by the Commission. Finally, the Court noted that those responsible for the disturbance associated with the building projects at least accepted the possibility of the Caretta caretta turtle being disturbed during its breeding period; the disturbance was thus deliberate and prohibited by EU law. In two other cases—namely in Case C-461/14, Commission v Spain (ECLI:EU:C:2016:895) and in Case C-141/14, Commission v Bulgaria (ECLI:EU:C:2016:8)—the Court declared that Spain and Bulgaria had failed to fulfil their obligations arising under the Habitats Directive, EC Directive 2009/147 on the Conservation of Wild Birds (Birds Directive), and EU Directive 2011/92 on the Assessment of the Effects of Certain Public and Private Projects on the Environment (EIA Directive). In particular, in Case C-461/14, the Court found that Spain had failed to take appropriate steps to avoid the deterioration of natural habitats and the disturbance of the species for which the special protection area ‘Campiñas de Sevilla’ was established. Likewise, in Case C-141/14, the Court found that Bulgaria failed to fulfil its obligations under the Habitats Directive by neither: (1) including all important bird territories in the special protection area covering the Kaliakra region; (2) classifying as special protection areas the most suitable territories in the Kaliakra region in number and size; nor (3) properly assessing the cumulative negative effect of several energy, tourism, and other projects in that region before approving their implementation. The request for a preliminary ruling in Case C-399/14, Grüne Liga Sachsen and Others (ECLI:EU:C:2016:10), concerned the interpretation of Article 6(2) to (4) of the Habitats Directive and was submitted in proceedings regarding a decision taken by authorities of the Free State of Saxony approving the construction of a bridge over the River Elbe in Dresden, Germany. The plans for the construction of the road bridge were approved in February 2004. The decision approving those plans, which was immediately enforceable, was based on a flora, fauna, and habitat impact study carried out in January 2003 in relation to the implications of the construction project for the preservation objectives of the site. In carrying out that study, which concluded that the construction project at issue in the main proceedings would have no significant or permanent adverse effects, the competent authority sought to rely on the requirements of Article 6(3) and (4) of the Habitats Directive. The study, however, did not meet those requirements and was thus merely a preliminary risk assessment. In December 2004, the Commission included the Elbe valley region in question in the list of SCIs referred to in Article 4 of the Habitats Directive. Despite the inclusion, construction work on the road bridge began in November 2007 and was completed in 2013. The bridge was opened to traffic the same year. The questions submitted by the referring court in the case at hand pertained, first, to the conditions under which a project should undergo a subsequent review of its implications under Article 6(2) of the Habitats Directive, in a case where it was authorized to be carried out on a site before the site’s inclusion in the list of SCIs. Second, the referring court made a request for the criteria that should be applicable in a case of such a subsequent review. The Court held first that a plan or project authorized following a study that did not meet the requirements of Article 6(3) of the Habitats Directive must be the subject of a subsequent review by the competent authorities, as this review constitutes the only appropriate step in order to avoid that the implementation of the plan or project will result in a significant deterioration of natural habitats and in disturbance of the species for which the areas have been designated. This subsequent review must be carried out in accordance with the requirements of Article 6(3) of that directive and must take into account all factors existing at the date of inclusion in the list of SCIs and all implications arising or likely to arise following the partial or total implementation of the plan or project on the site in question after that date. The Court further ruled that the requirements for a new assessment of the implications for the site concerned, carried out in order to rectify errors identified in relation to a prior assessment, may not be amended on account of the fact that the decision approving that plan or project was immediately enforceable, an application for interim measures had been dismissed, or the dismissal decision was no longer open to appeal. Should a new assessment conclude that the construction or entry into service of the bridge at issue in the main proceedings has already caused—or risks causing—deterioration or disturbance that could be significant in relation to the objectives of the Habitats Directive, the possibility nevertheless remains of applying Article 6(4) of that directive by analogy. Pursuant to this article, if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest—including those of a social or economic nature—and there are no alternative solutions, the member state is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. Lastly, the Court held that Article 6(4) of the Habitats Directive must be interpreted as meaning that the requirements of the check made in the context of the review of ‘alternative solutions’ may not be amended on account of the fact that the plan or project has already been implemented. In regard to the review of alternative solutions, the Court pointed out that the search for an alternative should not disregard any deterioration or disturbance caused by the construction, entry into service of the structure, or any advantages it offers. On the contrary, the examination of alternative solutions requires weighing the environmental consequences of maintaining or restricting the use of the works at issue, including closure or even demolition, on the one hand, against the important public interest that led to their construction, on the other. (B) Sharing Nature’s Genetic Resources In Case C-408/15, P Ackermann Saatzucht and Others v Parliament and Council (ECLI:EU:C:2016:893), the appellants—seventeen German undertakings, one natural person of German nationality, and sixteen Dutch undertakings—all active in the plant-breeding sector, sought the annulment of the Access and Benefit Sharing Regulation. The Court dismissed the appeals in their entirety and confirmed the General Court’s order under appeal by ruling that these operators were not individually concerned by the contested regulation, as that regulation could not be classified as a regulatory act within the meaning of the fourth paragraph of Article 263 of the TFEU. The Court, however, also highlighted that the application of Article 4 of the contested regulation presupposes the adoption of legislative or regulatory provisions by member states. Consequently, even though the appellants cannot, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 of the TFEU, challenge that regulation directly before the EU judicature, they can, in principle, contend that it is invalid before the national courts and cause the latter to subsequently refer questions to the Court of Justice for a preliminary ruling, pursuant to Article 267 of the TFEU. (3) United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) and the EU: Right of Access to Environmental Documents In 2016, the Court ruled on the right of access to environmental documents in two judgments: the first within the framework of an appeal against a judgment of the General Court and the second within the preliminary reference procedure. More specifically, in the Commission v Stichting Greenpeace Nederland and PAN Europe judgment (Case C-673/13 P, ECLI:EU:C:2016:889), two associations submitted a request to the Commission for access to a number of documents relating to the initial marketing authorization for glyphosate, one of the most widely used herbicides in the world for agricultural weeding and maintenance of urban and industrial areas. The request was based on EC Regulation no. 1367/2006 on the application of the provisions of the Aarhus Convention. The Commission granted access to those documents, with the exception of part of the draft assessment report prepared by Germany. The justification for the refusal stated that the document in question contained confidential information on intellectual property rights of the applicants for the glyphosate authorization (that is, inter alia, the detailed chemical composition of that substance, its manufacturing process, and the impurities and composition of the finished products). The two associations brought an action before the General Court for the annulment of the Commission’s decision. The General Court upheld that action by the judgment of 8 October 2013 (Case T-545/11, ECLI:EU:T:2013:523) and annulled the Commission decision insofar as it refused access to part of the draft assessment report. The General Court considered that certain parts of the document at issue contained information relating to emissions into the environment. Consequently, the Commission was not entitled to invoke the confidentiality of commercial and industrial information and should have granted the associations access to those parts of the document. The Commission launched an appeal against this judgment and asked the Court to set aside the judgment of the General Court. Similarly, in Case C-442/14, Bayer CropScience and Stichting De Bijenstichting (ECLI:EU:C:2016:890), a Dutch bee-protection association submitted a request to the relevant national authority for the disclosure of a number of documents concerning marketing authorizations issued by that authority for certain plant protection products and biocides. Bayer, a company holding a large number of these authorizations, objected to that disclosure on the grounds that it would infringe copyright and adversely affect the confidentiality of commercial or industrial information. Partial disclosure of the documents requested was authorized by that authority with the reasoning that these documents contained information on emissions into the environment, even though the disclosure could have an adverse effect on the confidentiality of commercial or industrial information. According to EC Directive 2003/4 on Public Access to Environmental Information, commercial and industrial confidentiality may not be invoked to preclude the disclosure of such information. In its judgments on these two cases, the Court clarified the notions of ‘emissions into the environment’ and ‘information on emissions into the environment’ within the meaning of EC Regulation no. 1367/2006 and EC Directive 2003/4. In both judgments, the Court found, first, that the concept of ‘emissions into the environment’ includes the release into the environment of products or substances such as plant protection products or biocides or active substances contained in those products, to the extent that such release is actual or foreseeable under normal or realistic conditions of use of the product or substance. Therefore, the concept of ‘emissions into the environment’ cannot be restricted to emissions emanating from industrial installations but also covers emissions resulting from the spraying of a product, such as a plant protection product or biocide, into the air or its use on plants, in water, or on soil. Such limitations would be at odds with the objectives of both the regulation and the directive relating to disclosing environmental information as widely as possible. Second, the Court confirmed that the regulation and directive cover not only information relating to actual emissions—that is to say, emissions that are actually released into the environment when a plant protection product or biocide is used on plants or in soil—but also information on foreseeable emissions from that product into the environment. However, the Court states that the concept of ‘information on emissions into the environment’ does not include information relating to purely hypothetical emissions. In this regard, the Court clarified that the concept must be interpreted as covering not only information on emissions as such (that is to say, information relating to the nature, composition, quantity, date, and place of those emissions) but also information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorized the product or substance in question, is correct, as well as the data relating to the medium- or long-term effects of those emissions on the environment. (4) Waste Six judgments were delivered by the Court in relation to EU waste legislation: three under the preliminary reference procedure and another three on the basis of actions for failure to fulfil obligations directed against Spain, Greece, and Romania. (A) Packaging The judgment in Case C-313/15, Eco-Emballages (ECLI:EU:C:2016:859) concerned two requests for a preliminary ruling on the interpretation of Article 3 of EC Directive 94/62 on Packaging and Packaging Waste. In its judgment, the Court reiterated that the term ‘packaging’ must be given a broad interpretation and that in order to constitute ‘packaging’ within the meaning of the directive, a product must be intended to be used for the containment, protection, handling, delivery, and presentation of goods from the producer to the user or the consumer. In addition, the Court noted that while it is true that roll cores are not intended to contain products, they nevertheless serve as both a support and spool for flexible products and therefore perform the functions of protection and presentation within the meaning of the directive. Since a roll core is designed to constitute, with the flexible product wound around it, a sales unit for the consumer at the point of purchase, it fulfils the definition of primary packaging. In these circumstances, the Court ruled that roll cores in the form of rolls, tubes, or cylinders around which flexible material is wound and sold to consumers constitute ‘packaging’ within the meaning of Article 3 of EC Directive 94/62. (B) Waste Framework Legislation (i) Waste shipments The request for a preliminary ruling in Case C-69/15, Nutrivet (ECLI:EU:C:2016:425) concerns the interpretation of EC Regulation no. 1013/2006 on shipments of waste and has been made in proceedings concerning administrative fines imposed by the competent Hungarian authorities for infringements of the rules on shipments of waste. In its judgment, the Court held that shipments of waste intended for recovery, such as those referred to in Annex III to that regulation, must be considered illegal when the document relating to the shipment, referred to in Annex VII to that same regulation, contains incorrect or inconsistent information, irrespective of: (1) whether that information is given correctly in other documents made available to the competent authorities; (2) the intention to mislead the authorities; or (3) the implementation of the procedures provided for in Article 24 of that same regulation by the authorities. In its judgment, the Court also ruled that penalties imposed by member states in the event of infringement of the provisions of that regulation must be proportionate. In the review of proportionality of such a penalty, the referring court must take particular account of the risks that may be caused by that infringement in the field of protection of the environment and human health. (ii) EC Directive 2008/98 on Waste In Case C-584/14, Commission v Greece (ECLI:EU:C:2016:636), the Court declared that Greece had not complied with the judgment of 10 September 2009 in Case C-286/08, Commission v Greece (EU:C:2009:543), which ordered Greece to adopted a specific plan for the management of hazardous waste, establish an integrated and adequate network of installations for the disposal of hazardous waste, and implement management of ‘historical waste.’ In those circumstances, the Court considered that the imposition of a penalty payment on Greece constitutes an appropriate financial means to ensure full compliance with the judgment and therefore ordered penalty payments and a lump sum to be paid. (C) Landfill of Waste In Case C-454/14, Commission v Spain (ECLI:EU:C:2016:117), the Court declared that Spain had failed to fulfil its obligations under EC Directive 1999/31 on the Landfill of Waste by failing to adopt, for each of the landfill sites at issue, the measures necessary either to (1) request the operator to prepare a conditioning plan and ensure full implementation of that plan in accordance with the requirements of the directive or to (2) close, as soon as possible, the corresponding landfill sites. (D) Mining Waste In Case C-104/15, Commission v Romania (ECLI:EU:C:2016:581), the Court found that, by failing to adopt appropriate measures to prevent pollution from dust particles coming from the Bosneag pond extension belonging to the copper and zinc mining operations of Moldomin at Moldova Noua, Romania had failed to fulfil its obligations under Articles 4 and 13(2) of EC Directive 2006/21 on the Management of Waste from Extractive Industries. The request for a preliminary ruling in Case C-147/15, Edilizia Mastrodonato (ECLI:EU:C:2016:606) related to the interpretation of Article 10(2) of the same EC Directive 2006/21 in conjunction with EC Directive 1999/31. The request has been made in proceedings concerning the authorization regime to which backfilling operations in respect of disused quarries must be subject. In its judgment, the Court reminded member states that, according to Article 2(1) of EC Directive 2006/21, the directive applies to the management of waste resulting from the prospecting, extraction, treatment, and storage of mineral resources and the working of quarries. EC Directive 1999/31, however, applies only to waste that is disposed of, not to waste that is to be recovered. In particular, Article 3(1) of EC Directive 1999/31 provides that it applies to all landfills, which are defined in Article 2(g) of the directive as waste disposal sites for the deposit of waste onto or into land. In this regard, the Court noted that the overall scheme of EC Directive 2006/21 is directed at governing solely the management of waste resulting from extractive industries and, thus, Article 10(2) of this directive may not be interpreted in a way that would result in implicitly broadening the scope of EC Directive 1999/31. It follows from the above that waste other than extractive waste may fall within the scope of EC Directive 1999/31 only if the waste is deposited in landfills for disposal, not if it is to be recovered. The use in landfills of inert waste suitable in redevelopment/restoration and filling in, or for construction purposes, is excluded from the scope of EC Directive 1999/31. (5) Environmental Assessment The Court delivered five judgments on the basis of requests for a preliminary ruling interpreting EC Directive 97/11 on the Assessment of the Effects of Certain Public and Private Projects on the Environment (EIA Directive) and EC Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programs on the Environment (SEA Directive). (A) EIA Directive The request for a preliminary ruling in Case C-645/15, Bund Naturschutz in Bayern and Wilde (ECLI:EU:C:2016:898) concerned the interpretation of the EIA Directive. The request has been made in proceedings concerning the legality of the decision taken by the Land of Bavaria, Germany, to approve the development of certain parts of a road within the municipal area of the City of Nuremberg without having carried out an assessment of the effects of that development on the environment. In the context of this case, the Court pointed out that it is clear from point 7(c) of the directive that the EU legislature intended to restrict the member states’ obligations to make certain road development projects subject to a systematic environmental impact assessment solely to those projects that concern road sections of a significant length—in the present case, a length of at least ten kilometres. Therefore, a road development project that, as in the case in the main proceedings, concerns a stretch of road that is under ten kilometres in length is not, solely because of its nature, among the projects covered by point 7(c) of Annex I to the EIA Directive, even though it consists of the widening or development of an existing road with four or more lanes. In regard to the scope of the concept of ‘express roads,’ whose construction must, according to point 7(b) of Annex I to the directive, be subject to an EIA, the Court noted that ‘express roads’ for the purposes of that provision are roads whose technical characteristics are those set out in the definition in point II.3 of Annex II to the European Agreement on Main International Traffic Arteries, even if those roads do not form part of the network of main international traffic arteries or are located in urban areas. Lastly, in regard to the concept of ‘construction’ for the purposes of point 7(b) of Annex I to the directive, the Court held that it must be interpreted as referring to the carrying-out of works not previously existing or to the physical alteration of existing installations. The judgment in Case C-348/15, Stadt Wiener Neustadt (ECLI:EU:C:2016:882) concerned the interpretation of Article 1(5) of EEC Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, in conjunction with the principles of legal certainty and protection of legitimate expectations. The request for a preliminary ruling was submitted in proceedings between the city of Wiener Neustadt, Austria, and the government of the Land of Lower Austria, concerning the lawfulness of the decision by which the latter took the view that the operation of a substitute fuel treatment plant should be regarded as authorized on the basis of the fact that the time limit for an annulment action before the national courts had elapsed. The national decision had been taken in breach of the obligation to assess its effects on the environment. The Court ruled in this case that a national provision such as the one at issue in the main proceedings, which considers a project as lawfully authorized in regard to the obligation to assess its effects on the environment, and in respect of which the time limit for an action for annulment before the national courts has expired, is not compatible with EEC Directive 85/337. The Court also held that the member state, through its competent authorities, is required to make good any harm caused by the failure to carry out an environmental impact assessment by taking all general or particular measures. (B) SEA Directive The validity of Articles 3(3) of EC Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programs on the Environment was upheld by the Court in the framework of its judgment on Case C-444/15, Associazione Italia Nostra Onlus (ECLI:EU:C:2016:978). The request for a preliminary ruling in this case has been made in proceedings concerning the requirement to carry out an environmental assessment under that directive in the case of a construction project planned for an island in the Venetian Lagoon. In its assessment, the Court recalled that Article 191(1) of the TFEU authorizes the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection, and improvement of the quality of the environment. While it is undisputed that Article 191(2) of the TFEU requires EU policy in environmental matters to aim for a high level of protection for such a level of protection to be compatible with that provision, it does not necessarily have to be the highest that is technically possible. Article 193 of the TFEU authorizes member states to maintain or introduce more stringent protective measures. In view of the need to strike a balance between certain objectives and principles mentioned in Article 191 of the TFEU and the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question of whether the European Parliament and the Council of the EU, by adopting Article 3(3) of the SEA Directive, committed a manifest error of appraisal. In addition, the Court reminded member states that there is a margin of discretion enjoyed by member states pursuant to Article 3(5) of the SEA Directive to specify certain types of plans or programs that are likely to have significant environmental effects. This margin of discretion is limited by the requirement under Article 3(3) of that directive, in conjunction with Article 3(2), to subject the plans or programs likely to have significant effects on the environment to environmental assessment, in particular on account of their characteristics, their effects, and the areas likely to be affected. It is for the member states to take, within the sphere of their competence, all the general or particular measures necessary to ensure that all plans or programs likely to have significant environmental effects are subject, before adoption, to an environmental assessment. In any event, the mere risk that the national authorities, through their conduct, could circumvent the application of the SEA Directive is not such as to render Article 3(3) of that directive invalid. The Court also affirmed that it does not appear, in the present case, that the Parliament and the Council committed a manifest error of assessment in light of Article 191 of the TFEU by adopting Article 3(3) of the SEA Directive, and, therefore, the provision’s validity remains intact. In its judgment in Case C-290/15, D’Oultremont and Others (ECLI:EU:C:2016:816) the Court ruled that the notion of ‘plans and programmes’ within the meaning of Articles 2(a) and 3(2)(a) of the SEA Directive includes regulatory orders containing various provisions on the installation of wind turbines that must be complied with when administrative consent is granted for their installation and operation. In its judgment in Case C-379/15, Association France Nature Environnement (ECLI:EU:C:2016:603), the Court ruled that a national court may—when allowed by domestic law, exceptionally, and on a case-by-case basis—limit, in time, certain effects of a declaration of the illegality of a national provision adopted in disregard of the obligations provided for by SEA Directive, provided that such a limitation is dictated by an overriding consideration linked to environmental protection. That exceptional power may, however, be exercised only if all the conditions stemming from the judgment of 28 February 2012 in Case C-41/11, Inter-Environnement Wallonie and Terre Wallonne (ECLI:EU:C:2012:103) are satisfied. More specifically, these conditions are: that the contested provision of national law constitutes a measure correctly transposing EU law on environmental protection; that the adoption and coming into force of a new provision of national law do not make it possible to avoid the damaging effects on the environment arising from annulment of the contested provision of national law; that annulment of the contested provision of national law would have the effect of creating a legal vacuum concerning the transposition of EU law on environmental protection which would be more damaging to the environment; and that any exceptional maintaining of the effects of the contested provision of national law lasts only for the period strictly necessary for the adoption of the measures making it possible to remedy the irregularity found. (6) Water The Court delivered six judgments: five on actions for failure to fulfil obligations directed against Poland, Austria, Portugal, Spain, and France and one preliminary reference dealing with a number of legal issues regarding EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy (Water Framework Directive) and EEC Directive 91/271 Concerning Urban Waste Water Treatment (Urban Waste Water Directive). (A) Water Framework Directive The judgment in Case C-686/15, Vodoopskrba i odvodnja (ECLI:EU:C:2016:927), following a request for a preliminary ruling submitted by a Croatian court, concerned the refusal of a consumer to pay the fixed component included in the price of his water consumption. In its judgment the Court considered it obvious from the relevant provisions of the national Croatian legislation that this legislation takes account of the principle of recovery in full of the costs connected with the availability and protection of water and the construction, management, and upkeep of the water supply systems. On this basis, the Court ruled that the Water Framework Directive must be interpreted as not precluding national legislation that provides that the price of water services invoiced to the consumer includes not only a variable component calculated according to the volume of water actually consumed by the person concerned but also a fixed component which is not connected with that volume. The Court dismissed the action for failure to fulfil obligations submitted by the Commission in case C-346/14 Commission v Austria (ECLI:EU:C:2016:322). Contrary to the Commission’s assertions relating to failure to implement the necessary measures to prevent deterioration of the status of the body of surface water on the Schwarze Sulm, the Court ruled that the competent national authority of the Austrian Province of Styria had conducted a detailed and specific scientific analysis of the contested project of construction of a hydropower plant, had included the direct and indirect impact of the project in the analysis, and had weighed up the advantages vis-à-vis the negative impact of the project in relation to the objectives of the Water Framework Directive. (B) Urban Waste Water Directive In three cases—namely, Case C-398/14, Commission v Portugal (ECLI:EU:C:2016:61), Case C-38/15, Commission v Spain (ECLI:EU:C:2016:156), and Case C-314/15, Commission v France (ECLI:EU:C:2016:887)—the Court found that Portugal, Spain, and France had failed to fulfil their obligations under the Urban Waste Water Directive, as amended by EC Regulation no. 1137/2008, insofar as they failed to ensure that discharges from urban waste water treatment plants were subject to an adequate level of treatment. (7) Industrial Emissions The judgment on the action for failure to fulfil obligations in Case C-304/15, Commission v United Kingdom (ECLI:EU:C:2016:706) declared that the United Kingdom failed to correctly apply EC Directive 2001/80 on the Limitation of Emissions of Certain Pollutants into the Air from Large Combustion Plants (Large Combustion Plants Directive) to Aberthaw Power Station. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Yearbook of International Environmental LawOxford University Press

Published: Dec 28, 2017

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