9 - The Green Constitution (Constitutional Dimension of EU Environmental Law) Flashcards
Outline of the lecture? (3)
1/ EU’s environmental ambitions
2/ environment in EU treaties (objectives, principles)
3/ EU and the Aarhus Convention
Main question of lecture?
To what extent does EU law enable the realisation of EU envtal ambitions?
Considerations surrounding EU envtal ambitions? (3)
1/ envtal policy = 1 of EU’s major achievements
2/ part of EU response to criticism of neoliberalism and primacy of market
3/ EU has global envtal leadership ambitions
What are illustrations of the EU’s global envtal leadership ambitions? (3)
1/ European Green Deal
2/ commitment to multilateralism in envtal field
3/ unilateral envtal legislation setting standards globally
Considerations surrounding European Green Deal? (4)
1/ main aim is no net GHG emissions by 2050
2/ rationale: economic growth decoupled from resource use
3/ emphasis on just transition
4/ instruments: Energy and Climate Package 2030 + comprehensive overhaul of legislation in different fields
Criticism of Green Deal? (2)
1/ relies on continuing growth
2/ commitments today unlikely to be enough under Paris Agreement
Evolution of envt in EU Treaties? (3)
1/ 1970s: on EU political agenda, but no explicit legal base
2/ 1986 (SEA): explicit EU legal competence with new policy title on the Envt + Article 114 TFEU
3/ Lisbon Treaty: Ttitle XX TFEU, Arts. 191-193
Where are envtal objectives codified?
Article 191(1) TFEU
What do EU envtal objectives touch upon? (4)
1/ quality of envt
2/ protection human health
3/ prudent & rational utilisation natural resources
4/ promotion measures at int. level to deal with regional or worldwide envtal pbs, in particular climate change
Where are EU envtal principles codified?
Article 191(2) TFEU => high level of envtal protection
What are the EU envtal principles? (5)
1/ high level of envtal protection (which need not be the highest level of protection that is technically possible)
2/ precautionary pcple
3/ preventive pcple
4/ rectification at the source pcple
5/ polluter-pays pcple
Considerations surrounding precautionary pcple? (8)
1/ acknowledges scientific uncertainty
2/ envtal decision-making should not wait until all facts are established with certainty
3/ lower evidence threshold
4/ no definition in the Treaty
5/ CJEU considers it to be a gnl pcple, also applicable to health
6/ opens discretion for public authorities
7/ control by courts mainly through science and risk assessment
8/ challenges come mostly from industry bc of strict legal standing
Underlying consideration of preventive pcple?
Prevention is better than cure
Underlying consideration of rectification at source pcple?
Polluter is responsible for cleaning up its own pollution
Underlying consideration of polluter-pays pcple?
Who causes envtal damage has to pay for it
Who is bound by the EU envtal pcples? (2)
1/ all EU institutions
2/ MS when implementing EU law
What does Article 193 TFEU allow? (5)
1/ national autonomy in envtal matters
2/ MS can set their own policy (subject to internal market law)
3/ once EU acts, EU secondary law applies
4/ however, minimum harmonisation => MS can adopt more stringent measures
5/ however 2.0, where art 114 TFEU is used, less regulatory autonomy is left to MS
Considerations surrounding EU and the Aarhus Convention? (5)
1/ adopted in 1998
2/ leading int. agreement on envtal democracy
3/ aim is to empower role of citizens and civil society organisations in envtal matters
4/ founded on pcples of participatory democracy
5/ EU and MS are parties
What are 3 pillars of Aarhus Convention?
1/ access to info
2/ public participation
3/ access to justice
Components of access to info pillar? (2)
1/ every citizen should have access to envtal info
2/ public authorities must ensure this access
Components of public participation pillar? (2)
1/ public must have chance to participate in decision-making on envtal matters
2/ improves outcomes and legitimacy
What does access to justice pillar entail?
The public’s right to judicial or administrative procedures that review violations of envtal law/Aarhus pcples
How did EU implement Aarhus Convention? (2)
1/ by Directives directed at MS
2/ by Regulations directed at EU institutions
What is a criticism of EU implementation of Aarhus Convention? (4)
1/ criticism of double standards
2/ EU implemented AC more accurately when imposing requirements on MS
3/ CJEU has supported application of EU legislation to MS by broad and Convention-friendly interpretation of EU legislation
4/ moreover, there is more progress on access to information than with respect to other pillars
How does EU law allow access to envtal info? (3)
1/ transparency and openness advanced as important pcple of good governance
2/ cf Article 15 TFEU and Articles 10(3), 11(2) TEU
3/ cf also secondary law such as Access Regulation (2001) and Aarhus Regulation (2006)
General considerations surrounding access to info at EU level? (4)
1/ Regulation 1049/2001 codifies pcple of widest possible access
2/ Article 4 codifies exceptions to this pcple to protect certain other interests (mandatory and non-mandatory exceptions)
3/ Aarhus Regulation (2006) overrides the exceptions of Article 4 Reg. 1049/2001
4/ cf Greenpeace and PAN Europe; Hautala
What is required with respect to non-mandatory exceptions in Article 4(2) Reg. 1049/2001?
A balance of interests
What are the 2 ways in which Aarhus Regulation overrides exceptions of Regulation 1049/2001? (3)
1/ presumption of disclosure for ‘envtal info’
2/ imposing a more restrictive interpretation
3/ cf Article 6(1)
What was the main legal issue in Greenpeace and PAN Europe & Hautala? (2)
1/ interpretation of ‘info which relates to emissions into the envt’ in Article 6(1) Aarhus Regulation
2/ link with ‘commercial interests’ exception
How did CJEU interpret ‘info relating to emissions into the envt’ in Art. 6(1)? (4)
1/ broad interpretation of concept in light of Aarhus Convention
2/ narrow interpretation of exceptions
3/ includes actual and foreseeable emissions
4/ also includes info on emissions and their medium and long term effects on envt
Considerations surrounding envtal democracy? (3)
1/ includes transparency and access to information
2/ purpose is to promote effective public participation and accountability
3/ public must have access to info to ascertain whether risk assessment was correct
Concluding remarks on access to info? (3)
1/ Aarhus Regulation interpreted in light of Aarhus Convention by CJEU
2/ all private and legal persons can request info and go to court
3/ there are remaining shortcomings
What are remain shortcomings with respect to access to info? (4)
1/ passive transparency => citizens must make requests
2/ most progress where commercial interests at stake
3/ other exceptions remain a obstacle to wide access
4/ infringement proceedings are exempted from Art. 6(1) (cf LPN Finland)
General considerations surrounding access to justice with respect to envtal info? (3)
1/ longstanding discussion and critique of CJEU bc limited standing for non-privileged applicants (Art. 263(4) TFEU)
2/ this is further exacerbated in the envtal field => no climate change or other public interest litigation at EU level
3/ in 2017, Aarhus Compliance Committee declared EU to be in non-compliance with AC
Which articles of Aarhus Convention are relevant with respect to access to justice?
Art. 9(3)(4)
Considerations surrounding access to judicial proceedings in the EU? (5)
1/ CJEU talks about a ‘complete system of remedies’
2/ dual system of judicial protection (direct/indirect)
3/ Art. 263(4) TFEU for standing of non-privileged applicants (natural/legal persons)
4/ legislative acts in pcple excluded, except where individual and direct concern can be proved
5/ non-legislative acts (i.e. regulatory acts) must meet 2nd or 3rd test
Difficulties arising out of Plaumann test & access to justice? (3)
1/ main problem is the ‘individual concern’ test as most envtal rules are either legislative or non-legislative acts of general application (people broadly affected)
2/ excludes public interest litigation
3/ system fundamentally at odds with broad access and envtal democracy
Difficulties arising out of new Lisbon test for ‘regulatory acts’? (5)
1/ requires no implementing measures & direct concern
2/ definitions not very clear but remain narrow
3/ pb: most EU envtal measures requires some form of implementation
4/ direct concern difficult to show for NGOs as they are considered to represent the public interest
5/ in contrast, economic actors are often able to fulfil the test bc of how EU rules interfere with economic rights
What is behind the reasoning of the CJEU with respect to access to justice? (4)
1/ dual system
2/ importance of preliminary reference procedure
3/ case load
4/ confirmed by Treaty authors when they did not fundamentally reform system in Lisbon
Which Regulation governed access to administrative review until 2021? (2)
1/ Aarhus Regulation (2006)
- now, Regulation 2021/1767
Concluding remarks on access to justice? (4)
1/ CJEU approach to legal standing fundamentally at odds with spirit of envtal democracy under Aarhus
2/ until recently, clear non-compliance
3/ since 2021, reform of Aarhus regarding internal review procedure
4/ gaps are remaining under Aarhus
6/ legislative acts
What are some of the remaining gaps regarding access to justice under Aarhus? (3)
1/ questionable that internal review procedures are fair in all instances
2/ internal review does not lead to annulment of measures
3/ legislative acts are still not subject to review
