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European Constitutional Law and Fundamental Rights > 9 - The Green Constitution (Constitutional Dimension of EU Environmental Law) > Flashcards

9 - The Green Constitution (Constitutional Dimension of EU Environmental Law) Flashcards

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1
Q

Outline of the lecture? (3)

A

1/ EU’s environmental ambitions

2/ environment in EU treaties (objectives, principles)

3/ EU and the Aarhus Convention

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2
Q

Main question of lecture?

A

To what extent does EU law enable the realisation of EU envtal ambitions?

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3
Q

Considerations surrounding EU envtal ambitions? (3)

A

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

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4
Q

What are illustrations of the EU’s global envtal leadership ambitions? (3)

A

1/ European Green Deal

2/ commitment to multilateralism in envtal field

3/ unilateral envtal legislation setting standards globally

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5
Q

Considerations surrounding European Green Deal? (4)

A

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

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6
Q

Criticism of Green Deal? (2)

A

1/ relies on continuing growth

2/ commitments today unlikely to be enough under Paris Agreement

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7
Q

Evolution of envt in EU Treaties? (3)

A

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

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8
Q

Where are envtal objectives codified?

A

Article 191(1) TFEU

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9
Q

What do EU envtal objectives touch upon? (4)

A

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

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10
Q

Where are EU envtal principles codified?

A

Article 191(2) TFEU => high level of envtal protection

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11
Q

What are the EU envtal principles? (5)

A

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

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12
Q

Considerations surrounding precautionary pcple? (8)

A

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

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13
Q

Underlying consideration of preventive pcple?

A

Prevention is better than cure

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14
Q

Underlying consideration of rectification at source pcple?

A

Polluter is responsible for cleaning up its own pollution

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15
Q

Underlying consideration of polluter-pays pcple?

A

Who causes envtal damage has to pay for it

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16
Q

Who is bound by the EU envtal pcples? (2)

A

1/ all EU institutions

2/ MS when implementing EU law

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17
Q

What does Article 193 TFEU allow? (5)

A

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

18
Q

Considerations surrounding EU and the Aarhus Convention? (5)

A

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

19
Q

What are 3 pillars of Aarhus Convention?

A

1/ access to info

2/ public participation

3/ access to justice

20
Q

Components of access to info pillar? (2)

A

1/ every citizen should have access to envtal info

2/ public authorities must ensure this access

21
Q

Components of public participation pillar? (2)

A

1/ public must have chance to participate in decision-making on envtal matters

2/ improves outcomes and legitimacy

22
Q

What does access to justice pillar entail?

A

The public’s right to judicial or administrative procedures that review violations of envtal law/Aarhus pcples

23
Q

How did EU implement Aarhus Convention? (2)

A

1/ by Directives directed at MS

2/ by Regulations directed at EU institutions

24
Q

What is a criticism of EU implementation of Aarhus Convention? (4)

A

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

25
Q

How does EU law allow access to envtal info? (3)

A

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)

26
Q

General considerations surrounding access to info at EU level? (4)

A

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

27
Q

What is required with respect to non-mandatory exceptions in Article 4(2) Reg. 1049/2001?

A

A balance of interests

28
Q

What are the 2 ways in which Aarhus Regulation overrides exceptions of Regulation 1049/2001? (3)

A

1/ presumption of disclosure for ‘envtal info’

2/ imposing a more restrictive interpretation

3/ cf Article 6(1)

29
Q

What was the main legal issue in Greenpeace and PAN Europe & Hautala? (2)

A

1/ interpretation of ‘info which relates to emissions into the envt’ in Article 6(1) Aarhus Regulation

2/ link with ‘commercial interests’ exception

30
Q

How did CJEU interpret ‘info relating to emissions into the envt’ in Art. 6(1)? (4)

A

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

31
Q

Considerations surrounding envtal democracy? (3)

A

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

32
Q

Concluding remarks on access to info? (3)

A

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

33
Q

What are remain shortcomings with respect to access to info? (4)

A

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)

34
Q

General considerations surrounding access to justice with respect to envtal info? (3)

A

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

35
Q

Which articles of Aarhus Convention are relevant with respect to access to justice?

A

Art. 9(3)(4)

36
Q

Considerations surrounding access to judicial proceedings in the EU? (5)

A

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

37
Q

Difficulties arising out of Plaumann test & access to justice? (3)

A

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

38
Q

Difficulties arising out of new Lisbon test for ‘regulatory acts’? (5)

A

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

39
Q

What is behind the reasoning of the CJEU with respect to access to justice? (4)

A

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

40
Q

Which Regulation governed access to administrative review until 2021? (2)

A

1/ Aarhus Regulation (2006)

  1. now, Regulation 2021/1767
41
Q

Concluding remarks on access to justice? (4)

A

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

42
Q

What are some of the remaining gaps regarding access to justice under Aarhus? (3)

A

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

European Constitutional Law and Fundamental Rights (10 decks)

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