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Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, 71000 Sarajevo, Bosnia and.

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Presentation on theme: "Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, 71000 Sarajevo, Bosnia and."— Presentation transcript:

1 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: KEY EU ENVIRONMENTAL LAW PRINCIPLES AND OBLIGATIONS OF MEMBER STATES – The ITALIAN CASE Alessandra Barreca University of Siena- Venice International University 1

2 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: AIM & OUTLINE Understanding EU Environmental Law principles; Understanding EU Member States (MS) implementation obligations towards EU Environmental Acquis;  PART I: EU Env Law principles;  PART II: MS obligations and relationship between national and EU Law; infringement procedure; the Italian case 2

3 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Part I: Key EU Environmental Law Principles 3

4 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: 4 TWO GENERAL PRINCIPLES Principle of Integration (Art 11 TFEU) Principle of Sustainable Development (Art 11 TFEU) FOUR ENVIRONMENTAL PRINCIPLES Prevention Principle (Art 191 TFEU) Precautionary Principle (Art 191 TFEU) Rectification of Damage at Source Principle (Art 191 TFEU) Polluter-Pays Principle (Art 191 TFEU)

5 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Which role played by the Environmental Principles? Inspire EU Environmental Law and Policy; Represent the grounds on which EU Env legislation is developed (they are usually recalled in the preamble, recitals and objectives of the Env. acts); Provide a source for interpretation of environmental norms; Provide a source for filling the gaps in the environmental norms 5

6 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Principle of Integration Art 11 TFEU: “Environmental protection requirements must be integrated in the definition and implementation of the Union’s policies and activities, with a view to promoting sustainable development”; Broad definition; “Environmental protection requirements” refers to all issues, interests, laws, policies and needs related to environmental protection; No priority or supremacy of environmental requirements over other sectors but rather a continuous greening of other EU policies required; Promotion of environmental policy not as self standing isolated area; The application of the principle requires decision making and judiciary Authorities to make a balance between environmental protection requirements and the interests belonging to other policies 6

7 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Links between environmental policy & other policies: main sectors affected 7 Environmental Policy Agriculture Maritime Resources & Fisheries Tourism Energy & Climate Change Transport

8 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Principle of Sustainable Development (SD) Art 11 TFEU: “Environmental protection requirements must be integrated in the definition and implementation of the Union’s policies and activities, with a view to promoting sustainable development”; No definition of SD in TFEU but reference to SD in International Law: “A development which meets the needs of the present without compromising the ability of future generations to meet their own needs” (UNCED-Brundtland Report Our Common Future, 1987); SD addressed by Goteborg European Council-2001: “SD is a fundamental objective under the Treaties. That requires dealing with economic, social and environmental policies in a mutually reinforcing way (...)” and by EU Sixth Environmental Action Programme: “A prudent use of natural resources and protection of the global eco-system together with economic prosperity and balanced social development are a condition for SD (…); Extensive reference to SD as ultimate objective of recent EU Environmental, Energy and Climate Change Law 8

9 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Strict link between Integration & SD: Integration as bridge to SD Integration into other EU Policies&Measures SD achievement! 9

10 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Prevention Principle Calls for an a anticipatory approach to environmental issues: ACTION TO BE TAKEN AT AN EARLY STAGE BEFORE ENVIRONMENTAL IMPAIRMENT HAS OCCURRED! Cornerstone of EU Environmental policy from the very beginning of its development: “The best Environmental policy concerns preventing the creation of pollution or nuisance at source, rather than subsequently trying to counterfact their effects”. (EEC First Environmental Action Programme- 1970); Applied in presence of full scientific evidence; Implemented by means of extensive EU Env. Legislation on industrial permitting (IPPC Directive 2008/01 now IED 2010/75); industrial accidents (EU Seveso Directive); waste management (EU/Directive 2008/98); impact assessment (EU EIA Directive 2011/92) 10

11 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Precautionary Principle (I) Firstly developed under International Law, introduced as EU Env Law principle in 1992 (Maastricht Treaty); “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious damages, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (Rio Declaration on Environment and Development-Principle ); “Measures are taken when there are reasonable grounds for concern that substances or energy introduced directly or inderectly into the environment may bring about damage to human health, or harming living resources, even where there is no conclusive evidence of causal relationship between the inputs and the effects”(OSPAR Convention on the Protection of the Marine Environment in North East Atlantic-1998) 11

12 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Precautionary Principle (II) Differently to the Prevention Principle, it applies in absence of full scientific certainty; Potential controversial interpretation and application of the precautionary principle which may risks to politicises decision-making therefore… …EU Commission adopted a Communication on the Precautionary Principle (COM ) to provide guidelines for its use and avoid its abuse:  Precautionary Principle not to be used to justify arbitrary decisions;  Applicable only in presence of potential risk;  Risk assessment to be made (even in absence of scientific certainty, scientific evaluation; hazard identification and characterisation; appraisal of exposure and risk characterisation);  Decision of whether or not to act: Risk management;  Measures taken to be proportional, non-discriminatory, consistent. 12

13 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Precautionary Principle (III) Implemented through EU legislation on GMOs (EU Directive 2009/41) and on Climate Change; Endorsed by extensive and settled ECJ case law: “Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent” (BSE Case C- 180/96 UK/Commission; but see also Pfizer Case T-13/99; Afton Chemical Case C-343/09; Gowan Case C-77/09) 13

14 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Rectification of Damage at Source Anticipatory and early response to environmental impairment, pollution or nuisance; Implemented by EU Env. Legislation setting emission standards (levels for pollutants or nuisance that cannot be exceeded in emissions from industrial installations/economic activities) and quality standards (levels of pollution or nuisance permitted that cannot be exceeded in environmental media): EU Water Directive 2000/60; EU Framework Directive on Waste 2008/98; Seveso Legislation on industrial accidents; ECJ: “(…) waste should be disposed of as close as possible to the place where is produced in order to keep the transport of waste the minimum practicable” (Case C-2/90 Commission/Belgium) 14

15 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Polluter-Pays Principle A legal principle with a marked economic dimension: costs of preventing or eliminating pollution shall be borne by the polluter, not by the Environment, the whole Society or Public Authorities; Promotes an “internalization” of environmental costs by preventive channeling them to the polluters; It does not cover cases of civil or criminal liability; Extensively implemented by EU Env Legislation on taxes and charges applicable to industrial activities (IED EU Directive 2010/75; EU Directives 2000/53 on End of Life Vehicles and 2002/96 on Electrical and Electronic Waste) 15

16 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Part II: Obligations of Member States 16

17 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Obligations of Member States: introductory remarks Legal acts adopted by the Union are binding on the Member States (Art 288 TFEU); No need of strictly implementing the EU Env. Principles but rather obligation of implementing the EU Env Legislation based on them and recalling them; Duty of loyal cooperation (ART 4.3 TFEU): “Pursuant to the principle of sincere cooperation, the Union and the MS shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. the MS shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the Institutions of the Union. the MS shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives” 17

18 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: 18 OBLIGATION OF MEMBER STATES TO IMPLEMENT EU ENV LEGISLATION MS ADOPT NATIONAL LEGISLATION IMPLEMENTING EU ENV ACQUIS EU INSTITUTION ADOPT EU ENVIRONMENTAL ACTS (BINDING LEGISLATION) REGULATIONS & DIRECTIVES (EU ENV ACQUIS) EU COMPETENCE IN ENVIRONMENTAL FIELD (ARTT 4 & 191 TFEU) EU ENVIRONMENTAL ACTIONS & MEASURES (based on Env. Principles)

19 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The relationship between National & EU Law Supremacy of Community Law over National Law; Need of ensuring uniform application of EU Law to attain EU’s objectives; “The Community constitutes a new legal order of international law for the benefit of which the MS have limited their soveregn rights, albeit within limited fields(…)” ECJ- Van Gend en Loos Case 26/62; “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on entry into force of the Treaty, became an integral part of the legal systems of the MS (…); the obligations undertaken under the Treaty would not be unconditional, but merely contingent, if they could be called into question by subsequent legislative acts of the signatories (…)” ECJ- Costa/Enel Case 6/64; Settled ECJ case law making explicit reference to “precedence/prevailing” of Community law over national one (ECJ- Simmental Case 106/77; Factorame Case 213/89) 19

20 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Concrete obligations of MS: general principles General obligation of actively contributing to the achievement of EU’s objectives and goals through implementing EU’s legislation; General obligation of abstaining from actions jeopardising the attainment of EU’s goals 20

21 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Concrete obligations of MS: !…the implementation challenge! IMPLEMENTING EU LAW INTO THE NATIONAL LEGAL SYSTEM: 1.Formal full&timely transposition- to be fulfilled by means of an adequate legal instrument, i.e.: a legally binding legislative or regulatory national act (legal certainty to be ensured); No suitability of administrative circulars or multiannual plans “To secure full implementation of Directives in law and not only in facts”, ECJ- Commission/Germany Case C-131/88; 2.Practical application (put in place all the Bodies, mechanisms, tools and procedures to ensure the concrete implementation of the law); 3.Reporting duties on Member States (EC Directive 91/692) 21

22 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Member States failure to comply with EU Law obligations & EU enforcement actions against Member States: THE INFRINGEMENT PROCEDURE 22

23 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The conditions: Article 258 TFEU “If the Commission considers that a MS has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the ECJ”. 23

24 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Different reasons of MS breach of EU Law; Commission competence to act deriving from its Guardian of the Treaty role; Several investigation files opened by the EU Commission but no proper investigation tools; (Alleged) Violations detected through MS reporting obligations outcomes and/or EU citizens complaints filed to the EU Ombudsman; Only MS (allegedly) in breach and EU Commission parts of the procedure; Other MS intervents supporting Parties allowed in the judicial stage 24

25 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The stages (I) 4 distinct stages: 1.Initial pre-contentious stage: MS diplomatic negotiations with EU Commission to explain its position and reach an accomodation (pre-judicial, compulsory stage); 2.Formal Notification stage: the matter is not solved under stage 1, the Commission formally notifies the MS concerned of the specific infringement alleged by means of a formal letter, the MS is given possibility to reply (pre-judicial, compulsory stage if matter not solved under 1) MS time to reply: usually 2 months; Commission decision on whether to close the case or proceed: usually 1 year; Commission formal letter form and content to be accurately designed as it determines the object of litigation even in the (possible) forthcoming stages of procedure; ECJ Cases C- 266/94 Commission/Spain and C-337/89 Commission/UK 25

26 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The stages (II) 3.The Reasoned opinion stage: matter still not solved (alleged infringement persists, Commission not satisfied with MS explanations), Commission issues a reasoned opinion clearly stating the grounds and substance of the alleged infringement and specifies the time period for remedying the breach of EU Law (pre-judicial, compulsory stage if matter not solved under 2 and Commission decides to proceed) Reasoned opinion in written form (content shall be clear and based on issues raised under formal notice stage); Grounds of complaint against MS to be stated clearly, no additional point of complaint allowed, no general or ambiguous reasons allowed, object of litigation to be clearly identified and determined; Time span for MS to remedy the (alleged) violation of EU Law to be determined; Respect of principles of natural justice and right of defense of MS 26

27 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The stages (III) 4.The referral of the matter to the ECJ: matter not solved under stage 3, MS has not complied with the conditions set in the reasoned opinion and remedied to the (alleged) violation. The Commission finds the violation persists and decides to bring the MS before the ECJ (judicial stage, not compulsory); High degree of discretion of the EU Commission retaining the power to decide whether to proceed; Rights of defense to be ensured (same object of litigation stated in the formal notice+reasoned opinion); Burden of proof on Commission (incumbent on Commission to prove the alleged violation); Declaratory nature of the ruling of the ECJ 27

28 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: …What if? IT ISN’T OVER TILL IT’S OVER!: Art 260 TFEU: “If the ECJ finds that a MS has failed to fulfil an obligation under the Treaties, the MS shall be required to take the necessary measures to comply with the judgement of the Court. If the Commission considers that the MS concerned has not taken the necessary measures to comply with the judgement of the Court, it may bring the case before the ECJ after giving the State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the MS concerned which it considers appropriate in the circumstances. If the ECJ finds that the MS concerned has not complied with its judgement it may impose a lump sum or payment on it. (…)”; MS failure to comply with an earlier ECJ ruling; EU Commission active role in detecting the MS failure and starting the art 260 TFEU procedure; Discretion of EU Commission; MS rights of defense to be ensured; Declaratory and sanctionatory nature of ECJ ruling 28

29 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The pecuniary penalty Sanction to be deterrent and not purely symbolic; Lump sum or daily sum penalty; Guidelines to calculate amount of penalty developed by EU Commission but certain degree of discretion retained by ECJ; 3 criteria: penalty to be proportionate to seriousness of violation; duration of violation; likelyhood to act as a deterrent for future infringements; Uptodate 3 art 260 ECJ judgements imposing financial penalties in cases handled by the EU Commission-DG Environment: Cases C-387/97 Commission/Greece (waste Directive, €/day of delay in implementing measures to comply with earlier ECJ judgement); C-278/01 Commission/Spain (quality of bathing water Directive, €/year until the earlier ECJ judgement is fully complied with); C-121/07 Commission/France (GMOs Directive, lump sum= €) 29

30 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Some figures… 30 (Source: EU Commission-DGEnvironment, 13/09/2012)

31 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: 31

32 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: 32

33 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: 33

34 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: 34

35 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: 35

36 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The Italian Case 36

37 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Member State of the EU since 1957 (founding Member of former CEE, then the EU, now “the Union”); Supremacy of EU Law over national one recognised as effect of Article 10 Constitution of the Italian Republic: “The Italian legal system is consistent with the International Law norms generally recognised”. (“L’ordinamento giuridico Italiano si conforma alle norme di Diritto Internazionale generalmente riconosciute”); Supremacy EU Law also recognised as effect of ruling 170/1984 Italian Constitutional Court, where the Supreme Court found that in case of contrast between an EU and a national norm regulating sectors under EU competence as envisaged in the Treaty, the EU norm shall have immediate effectiveness with consequent disapplication by the ordinary national judges of the national norm in contrast with the EU one; Furhtermore, Article 117 Italian Constitution provides that the legislative power is implemented by the State and the Regional Institutions, according to the Constitution and the International and EU obligations; Environmental and ecosystem protection under exclusive competence of the central State as effect of Article 117 Italian Constitution (legislative power retained by Parliament and National Government) 37

38 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The implementation of EU Law in Italy Implementation procedure regulated by Law n.11/2005; Every year the Italian Parliament adopts a framework “EU Law” (Legge Comunitaria) spelling out the methods, legislative tools and timeframes to be used to implement all the EU legislation and ECJ rulings adopted in that year by EU Institutions; The yearly Italian Legge Comunitaria is drafted by the Italian Minister for the EU Policies according to the guidelines of the National Parliament and in cooperation with other interested Departments and Regional Legislative Institutions that may submit their observations/opinions to the Ministry; It identifies the single EU Laws to be implemented in separated Annex/Annexes; It contains details on: delegation of legislative power to specifically identifyied National/Regional Authorities in charge of implementing the EU Laws according to the national distribution of legislative competence and consistently with the national rules on power of delegation of legislative competence; the single legislative instruments to be adopted (Law, Decree, Legislative Decree+any further administrative act necessary to achieve full implementation); the timespan for adoption of the implementing acts envisaged therein; It usually also includes some express provisions and guidelines on the specific rules/amendments to be adopted (definitions; obligations; rights; prohibitions…) 38

39 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: The legislative iter in detail Draft text developed by Ministry for EU Policies Reading by the Parliamentary Commission for EU Policies (power to submit observations for possible amendments) Submission to Council of Ministries for approval Submission to National Parliament (Deputy Chamber + Senate Chamber) for final approval IF ITER OK: PROMULGATION BY PRESIDENT OF REPUBLIC & PUBLICATION IN ITALIAN OFFICIAL JOURNAL(OG) FOR ENTRY INTO FORCE ☺!

40 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: An Italian case (I) Case C-297/08 Commission/Italy (Art 258 TFEU); Italian alleged breach: failure to fulfill obligations envisaged in Artt. 4,5 Directive 2006/12/EC (now Dir. 2008/98) on Waste management: i.e.: failure to adopt Waste Management plan & Integrated and adequate network of waste disposal installations with consequent alleged danger for human health or the environment and violation of principles of self sufficiency and proximity in waste management and disposal; Matter not solved under pre-litigation procedure (1:exchange of memorandum and written explanations between Italy and Commission, May-July 2007; 2:Commission letter of formal notice to Italy & reply by Italian Ministry for the Environment, August-December 2007; 3:Commission reasoned opinion, February-March 2008; Commission action brought before ECJ in July 2008; ECJ ruling in March

41 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: An Italian case (II) Some of the Italian Republic arguments: it cannot be held responsible for the alleged failure to fulfil obligations, which is attributable, rather, to certain events which constitute force majeure, such as the opposition of the local inhabitants to the establishment of landfills in their municipalities, the presence of criminal activity in the region and the failure by public contractors to meet their contractual obligations to construct certain essential installations in the region; MAIN FINDINGS OF THE COURT: “The principle that environmental damage should, as a matter of priority, be remedied at source – laid down in Article 191 TFEU as a basis for Community action in relation to the environment – entails that it is for each region, municipality or other local authority to take appropriate steps to ensure that its own waste is collected, treated and disposed of and that waste must accordingly be disposed of as close as possible to the place where it is produced, in order to limit as far as possible the transportation of waste. Member State cannot rely on provisions, practices or situations in its domestic law to justify non- compliance with obligations or time-limits laid down in a directive”; ECJ ruling: “(the Court) Declares that, by failing to adopt, for the region of Campania, all the measures necessary to ensure that waste is recovered and disposed of without endangering human health and without harming the environment and, in particular, by failing to establish an integrated and adequate network of disposal installations, the Italian Republic has failed to fulfil its obligations under Articles 4 and 5 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste”. 41

42 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: Concluding remarks The Key EU Environmental Principles are guiding and inspiring rules whose primary function is to provide the grounds and the vision for EU Environmental Law measures & targets; They shall rely on an effective EU Environmental legislation fully implementing and recalling them in order to be fully operative; The EU Member States implementation challenge shall not turn into an implementation gap! in order not to compromise the achievement of EU Environmental Policy goals 42

43 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: KEY EU ENVIRONMENTAL LAW PRINCIPLES AND OBLIGATIONS OF MEMBER STATES – The ITALIAN CASE Alessandra Barreca University of Siena- Venice International University 43

44 Strengthening of Bosnia and Herzegovina’s Environmental Institutions and Preparation for Pre-accession Funds Sumbula Avde 7, Sarajevo, Bosnia and Herzegovina Tel./Fax: +387 (0) Web: KEY EU ENVIRONMENTAL LAW PRINCIPLES AND OBLIGATIONS OF MEMBER STATES – The ITALIAN CASE Alessandra Barreca University of Siena- Venice International University 44


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