1. LLM 2010/11 EU ENVIRONMENTAL LAW I Session I Structures

2. Core Institutional Actors European Commission DG Environment (Janez Potočnik) DG Climate Change (Connie Hedegaard) DG Energy (Gunther Oettinger) Secretariat General (Catherine Day)

3. European Parliament Council of the European Union Permanent Representatives (eg UKREP) Court of Justice of the European Union

4. PHASE I 1972-1987 Economic basis for most environmental laws Emphasis on legal standards Council of Ministers unanimous voting and very much in charge Rapid creation of new body of law discrete to environment (waste, water, air) Little on integration Little on enforcement

5. PHASE II 1987-2000 Explicit environmental basis in Treaty Developing ECJ case-law Procedural emphasis in laws European Parliament more co-decision Implementation and Enforcement

6. Phase 3 2000- 2007 Limits of traditional regulation (search for other solutions - agreements, economic instruments, information) Integration into other areas More emphasis on governance and rights Coping with new wave of accession states

7. Phase 4 2007 - Global leadership and then loss of confidence on climate change (Copenhagen, emissions trading etc.) Secretariat General pushes for regulatory reform, more focused enforcement CAP Reform 2010 onwards and Common Fisheries Reform 2012 Coping with enlargement More cooperative approaches with Members States and more opportunity for diversity Constitutional Treaty and Lisbon build up

8. ENVIRONMENT AND THE TREATIES EC Treaty 1957 1972 Heads of Government call for environment action programme from the Commission First programme [1973] OJ C 112/1 Legal measures started in 1975 based either on Art 94 (single market) or Art 308 (reserve power) Unanimous voting by Council and consultation only with European Parliament

9. Acceleration 1987 - 1992 Single European Act 1987 Environment provisions (Art 130 r )

10. Maastricht 1991 Art 2 fundamental task sustainable growth…respecting the environment Art 3(k) a policy in the sphere of the environment Integration principle strengthened Adds precautionary principle in Art 130r (2) Environmental Policy now contributes to objectives Measures at international level now explicit. Subsidiarity principle becomes overarching Qualified majority voting except for certain defined areas (fiscal, land use planning, general structure of energy Co-decision for single market measures Action programme now decided by Co-decision with Parliament

11. AMSTERDAM 1997 (in force 1999) balanced and sustainable development objective in TEU High level of environmental protection in Art 2 TEC Environmental integration principle moves up to Art 6 Co-decision procedures for most environmental measures (Art 175 and Art 95 aligned) Strengthens market based provisions concerning higher standards for Member States and makes procedures explicit No right to healthy environment

12. NICE 2003 Charter of Human Rights agreed 2000 NICE Failed to clarify legal status of Charter of Human Rights Some loosening up of voting procedures but confusion Declaration in importance of promoting environmental protection globally

13. LISBON 2007 (came into force December 2009) Recasts Treaties. EU and EC merge into European Union TEU and TFEU Objectives of Union (Art 3) now include work towards sustainable development of Europe Integration principle still present (Art 13 TFEU) but now equal status with other integration principles Environmental principles Art 191-193 Climate change enters language of fourth goal New title on Union Energy Policy (Title XXI) Enforcement procedures before ECJ strengthened Direct access to ECJ may be opened up a little

14. CHOICE of LEGAL BASIS Why the obsession with legal basis?

15. CHOICE - General approach by Court Must be based on objective criteria Merely because measure has environmental goals doesnt make it environmental Merely because environmental measure has market implications doesnt make it market If legislative procedure incompatible, only one legal base Centre of gravity test.

16. TO2 Case C 300/89 1991 ECR I-2867 Choice of legal basis objective factor not choice of parties - based on aims (recitals) and contents Main or incidental purpose core test - centre of gravity doubted But if two aims then two legal basis - here aims inextricably linked But cooperation procedure and unanimity procedures not compatible so has to be one

17. TO2 Case Legislative procedure under 100A cooperation) …participation reflects a fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly

18. Commission v Council (Energy Star) C 281/01 Agreement with US and Community on recognition of energy labelling office equipment Commission based on Art 133 (CCP), Council 175 (environment) Preamble stresses energy saving and environment Two legal bases if inseparably linked objectives but predominant objective determines Agreement has direct impact on trade in office equipment - environmental effects indirect and distant. Commercial policy objective predominant. Opinion 2/00 Catagena Protocol on trade in GMOs - environment predominant so Art 175

19. C-155/91 Commission v Council [1993] ECR I-939 Waste Framework Directive Many individual waste laws based on single market. But ECJ hold that central concerns of Directive with environment and rectification at source

20. C-42/97 Parliament v Council (Linguistic Diversity) [1999] ECR I-869 Linguistic programme - industrial policy or culture? Fact that measure has twin goals does bring it outside the predominant purpose rule Each component had to equally essential and dissociable

21. Reg 842/2006 states that Art 175 basis but for 3 Articles Art 95 (single market) C-178/03 Reg 304/2003 on export of chemicals held by court to be based on both Art 133 (external trade) and 175 (environment). But co-decision procedure chosen no reason Split directives - eg directive on waste from electrical products (art 175) but directive on banning hazardous products in electrical products (Art 95) but conflicts with End of Life Vehicles Directive (Art 175)

22. Current Position Products (single market) Production (environment) Procedures (environment) Nature protection (environment) Waste - inconsistencies) Other Treaty provisions (agriculture energy etc.) - predominant goal and note integration principle)

23. Community law Regulations - immediate effect within legal systems Directives (unique to EU) obligation of Member State to do what is necessary to achieve goals but discretion as to how.

24. Directives Old view helpful if eccentric recommendations to be gently eased into the scheme of things, ideally by circular and ideally without costs (D Wyatt) ECJ insists that most provisions must be transposed by law not administrative practice ECJ develops direct effect doctrine - some precise and certain provisions by be invoked in national courts against the State

25. Legislative Acts What should guide choice of Directive or Regulation?

26. Directive or Regulation? Treaty does not give real guidance ECJ no principles Regulations tend to be used for novel areas or where cross border direct implications (shipment of wastes) Directives where process and procedure involved Lisbon PROTOCOL ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY may push towards directives