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EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE FIELD OF EU ENVIRONMENTAL LAW WORKSHOP.

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Presentation on theme: "EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE FIELD OF EU ENVIRONMENTAL LAW WORKSHOP."— Presentation transcript:

1 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE FIELD OF EU ENVIRONMENTAL LAW WORKSHOP ON EU LEGISLATION NATURE PROTECTION © 2010 Microsoft Corporation. All rights reserved. EU environmental law and national Courts : an introduction

2 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 2 EU environmental law Air quality GMOs Public Participation in environmental decisions Pollution control of industrial installations Water quality, Waste water, Drinking water Protecting biodiversity Waste management Drawings Benoît Clément -2011-

3 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 3 Objectives and legal basis for EU environmental law Art 3(3) TEU – objectives of the EU: The Union shall work for sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. Art 191, 192 and 193 TFEU (replacing Articles 174, 175, 176). Art 191(4): a new legal basis for climate change Art 194: a new legal basis for EU energy policy

4 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 4 Two ways to ensure compliance with EU law: Role of the Commission: –Guardian of the Treaties: Art 17 TEU –Specific procedures in Art 258 and 260 TFEU Role of national judges and role of the Court of Justice of the European Union –The concept of « direct effect » –Indirect effect –National procedural autonomy (?) –Preliminary rulings

5 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 5 The mission of the Commission Article 17 TUE The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union.(…) 2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise (…)

6 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 6 Bringing a case to the Court of Justice Article 258 TFEU «If the Commission considers that a Member State 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 Court of Justice of the European Union. » 3 types of infringement procedures: – Non-communication cases – Non-conformity cases – Bad-application cases

7 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 7 Letter of formal notice 2 months for reply Technical meetings Reasoned Opinion Court of Justice Judgement of the ECJ Drawings Benoît Clément, 2011, How does the procedure work in practice ? (1st phase article 258 TFEU)

8 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 8 Novelty for non communication cases: Art 260(3) TFEU Financial penalties 2 months for reply Technical meetings Reasoned Opinion Court of Justice Judgement of the ECJ Drawings Benoît Clément, 2011, Letter of formal notice

9 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 9 The nature of the infringement procedure Tool for elite co-operation Objective law-enforcement tool No need for the Commission to demonstrate a specific motive or interest to bring action before the Court No restrictions on time for bringing an action Channel for individuals to complain: No means to force Commission to initiate procedure (C-247/87 Star Fruit case) Not party to the procedure (T-191/99 – Petrie case) Improvements because of EU Ombudsman

10 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 10 Infringements of EU ENV law by country (1 September 2010) 4 6 8 10 11 12 13 19 21 23 26 31 39 42 52 0 10 20 30 40 50 60 LV NL SI MT DK AT CYDE FI LU SK EE HU LT SE BG UK BE CZ FR PL PT RO IE EL ES IT

11 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 11 Infringement of EU environmental law by topic (1 September 2010) Impact 10% Eau 23% Information 3% Air 15% Produits chimiques 15% Nature 19% Déchets 15%

12 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 12 Second referral to the Court Article 260(2) TFEU If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. In practice, both a lump sum and a daily penalty will be asked ( C-304/02; Commission v. France ) Daily penalty = uniform flat rate per day multiplied by factors reflecting duration and seriousness of breach and a factor ensuring a deterrent effect of the penalty

13 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 13 Second referral to the Court in practice Letter of formal notice Penalties and lump-sum Second judgment of ECJ 2 months for reply Court of Justice Technical meetings First judgment of ECJ Drawings Benoît Clément, 2011,

14 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 14 Article 260 cases involving EU environmental law by country (1 September 2010) 1111 222 33 4 55 8 11 12 0 2 4 6 8 10 12 14 ATCZEENLLUMTSEBEUKESFRPTELIEIT

15 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 15 Action at the level of national courts and the concept of direct effect A provision of EU law has direct effect (can be invoked and relied on by individuals before national courts), if: – it is intended to confer rights on individuals and – if it is sufficiently clear, precise and unconditional National judges are « EU law judges » Applies to all binding EU law – C-26/62: Van Gend en Loos (Treaty provisions) – C 39/72: Slaughtered cows case (Regulations) – C-9/70 Grad (Decisions) … – International treaties (not all)

16 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 16 Direct effect and directives Binding as to the result to be achieved and leave MS the choice of form and method (against direct effect) Reasons for direct effect: –C-41/74: Van Duyn v. Home Office: Useful effect would be weakened Implied in the preliminary rulings procedure –Doctrine of estoppel (C-148/78 Ratti) Only vertical direct effect (C-152/84: Marshall): Directives are addressed to MS + punitive reasoning Maintaining distinction between different EU acts

17 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 17 Expanding direct effect: indirect effect Obligation to interpret national law in conformity with EU law (C-14/83 Von Colson) Even in a litigation between private parties (C-106/89 Marleasing) All national law, even if it pre-dates the directive and is not designed to implement it (Marleasing + C-62/00 Marks&Spencer) in so far as possible/ contra lege interpretation not required

18 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 18 Only after the expiry of the time limit for transposition (C-212/04 Adeneler) –Inter-Environment Wallonie (C-129/96) and Mangold (C-144/04) National courts must do it also on their own motion (C- 72/95 Kraaijeveld) Principle of non-retroactivity of penal liability (C-80/86 Kolpinguis Nijmegen) Expanding direct effect: indirect effect (2)

19 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 19 National procedural rules New Art 19(1) TEU: MS shall provide remedies sufficient to ensure effective legal protection in the fields covered by EU law Conditions for national procedural autonomy (C-33/76 Rewe): –equivalence/non-discrimination –Practical possibility/exercise of EU rights should not be made impossible/excessively difficult –In some cases emphasis on effectiveness: national courts required to make available a specific type of remedy, whether of not it would be available under national law

20 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 20 The principle of State liability (C-6&9/90 Francovich) –Directive grants identifiable individual rights –Sufficiently serious breach –Casual link between MS obligation and harm suffered National procedural rules (2)

21 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 21 The preliminary reference mechanism Art 267 TFEU (old article 234 TEC) interpretation of EU Treaty and interpretation and validity of acts of EU institutions (even non- binding) Obligation for Supreme courts, possibility for ordinary courts No obligation: Precedent Doctrine of acte-claire: - The question raised is irrelevant or the correct application of EU law is so obvious as to leave no scope for any reasonable doubt as to the manner to interpret it (C-283/81 CILFIT)

22 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 22 Preliminary references by country (end of 2009) 2004-2009 1961-2003

23 EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 23 Conclusion : 2 complementary ways to ensure compliance with EU law: EU law implementation problem Judgement on failure to fulfil obligations Referral to a national Court National judge Commission is informed or Commission identifies the problem Commission Article 267 TFEU Article 258 TFEU Court of Justice of the European Union Judgement on preliminary reference Ruling of national Court


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