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

Question 1

Outline of the lecture? (3)

Answer 1

1/ EU’s environmental ambitions

2/ environment in EU treaties (objectives, principles)

3/ EU and the Aarhus Convention

Question 2

Main question of lecture?

Answer 2

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

Question 3

Considerations surrounding EU envtal ambitions? (3)

Answer 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

Question 4

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

Answer 4

1/ European Green Deal

2/ commitment to multilateralism in envtal field

3/ unilateral envtal legislation setting standards globally

Question 5

Considerations surrounding European Green Deal? (4)

Answer 5

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

Question 6

Criticism of Green Deal? (2)

Answer 6

1/ relies on continuing growth

2/ commitments today unlikely to be enough under Paris Agreement

Question 7

Evolution of envt in EU Treaties? (3)

Answer 7

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

Question 8

Where are envtal objectives codified?

Answer 8

Article 191(1) TFEU

Question 9

What do EU envtal objectives touch upon? (4)

Answer 9

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

Question 10

Where are EU envtal principles codified?

Answer 10

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

Question 11

What are the EU envtal principles? (5)

Answer 11

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

Question 12

Considerations surrounding precautionary pcple? (8)

Answer 12

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

Question 13

Underlying consideration of preventive pcple?

Answer 13

Prevention is better than cure

Question 14

Underlying consideration of rectification at source pcple?

Answer 14

Polluter is responsible for cleaning up its own pollution

Question 15

Underlying consideration of polluter-pays pcple?

Answer 15

Who causes envtal damage has to pay for it

Question 16

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

Answer 16

1/ all EU institutions

2/ MS when implementing EU law

Question 17

What does Article 193 TFEU allow? (5)

Answer 17

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

Question 18

Considerations surrounding EU and the Aarhus Convention? (5)

Answer 18

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

Question 19

What are 3 pillars of Aarhus Convention?

Answer 19

1/ access to info

2/ public participation

3/ access to justice

Question 20

Components of access to info pillar? (2)

Answer 20

1/ every citizen should have access to envtal info

2/ public authorities must ensure this access

Question 21

Components of public participation pillar? (2)

Answer 21

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

2/ improves outcomes and legitimacy

Question 22

What does access to justice pillar entail?

Answer 22

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

Question 23

How did EU implement Aarhus Convention? (2)

Answer 23

1/ by Directives directed at MS

2/ by Regulations directed at EU institutions

Question 24

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

Answer 24

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

Question 25

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

Answer 25

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)

Question 26

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

Answer 26

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

Question 27

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

Answer 27

A balance of interests

Question 28

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

Answer 28

1/ presumption of disclosure for 'envtal info' 2/ imposing a more restrictive interpretation 3/ cf Article 6(1)

Question 29

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

Answer 29

1/ interpretation of 'info which relates to emissions into the envt' in Article 6(1) Aarhus Regulation 2/ link with 'commercial interests' exception

Question 30

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

Answer 30

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

Question 31

Considerations surrounding envtal democracy? (3)

Answer 31

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

Question 32

Concluding remarks on access to info? (3)

Answer 32

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

Question 33

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

Answer 33

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)

Question 34

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

Answer 34

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

Question 35

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

Answer 35

Art. 9(3)(4)

Question 36

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

Answer 36

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

Question 37

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

Answer 37

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

Question 38

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

Answer 38

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

Question 39

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

Answer 39

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

Question 40

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

Answer 40

1/ Aarhus Regulation (2006) 2. now, Regulation 2021/1767

Question 41

Concluding remarks on access to justice? (4)

Answer 41

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

Question 42

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

Answer 42

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