lecture 5 Flashcards
(31 cards)
should the EU be concerned with environmental matters?
yes, since the 1970s
- art 3(3) TEU: high level of protection of environment, so it is a goal of the EU
- Sustainable development (three pillars) = economic, social and evironmental development/protection
There are sustainable development goals about the environment
evolution of EU invironmental law
We had a community of coal and steel, and we wanted to create a common market. At the time this was what was fueling the factories. So there was no competence to regulate environmental matters. However, there was still attention to environmental matters.
There was a flexibility clause: art 352 TFEU ➞ when there is no legal basis, this could be used. It was the key provision to adopt environmental legislation
- In 1970’s the industrial world realised that it came at the cost of the environment. There were conferences
timeline of the evolution of EU environmental law
- No original competence in 1957 Rome Treaty
- Single European Act 1986: first legal basis
- 1992 Maastricht Treaty: QMV voting in most for most matters ➞ acknowlegdement and the voting made it easier to create legislation
- Amsterdam Treaty and 2004 enlargement ➞ codesicion. The 2004 enlargment because 10 states joined the EU, so more legislation.
- Lisbon Treaty: fully fledged environmental policy ➞ clear objectives and environmental law principles & clarity in terms of decision making
What are the core Treaty provisions governing EU environmental law and policy?
Article 3(3) TEU: The EU shall work for the sustainable development of Europe and a high level of environmental protection.
Articles 191–193 TFEU:
- Art. 191(1): Protect the environment, human health, prudent resource use, and global cooperation.
- Art. 191(2): Environmental principles: precaution, prevention, rectification at source, polluter pays.
- Art. 192: Legal basis for adopting environmental legislation (ordinary legislative procedure).
Article 11 TFEU: Integration principle – environmental protection must be integrated into all EU policies and activities
TFEU arts 191-193
environmental law
Objectives: preserve, protect and improve the quality of the environment. Also want to protect human health
- Have to protect because it is in our own interest ➞ antroprocentic view
- Also, for the sake of itself (non-antroprocentic view)
Principles
Decision-making
Treaty-based catalogue in Article 191(2) TFEU
environmental law
➞ important because principles give a certain function
they ensure consistency
They are used in case law (principle of precaustion
- Prevention: dont take measures that might harm the environment
- Precaution: if there is no conclusive scientific evidence, then we must be precasutious
- Rectifying the damage at source: close to the principle of prevention
- Polluter pays: those who pollute should be the ones paying for the consequences, could be other types of payment
General principle as well = principle of integration (art 11 TFEU)
➞ so, we’ve gone a long way since the 1970
what is biodiversity?
legal definition
The variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems.
- Its about animals and plants. But, most importantly, it is about diversity (within, between species and of ecosystems)
In Article 2 of the 1992 Convention on Biological Diversity as
This definition guides the EU’s approach to protecting nature under the Habitats Directive (92/43/EEC) and Birds Directive (2009/147/EC)
Causes of loss of biodiversity?
= the more extreme weathers ➞ climate change. The loss of biodiversity then also cause more climate change
- The direct most dangerous = polition and loss of habitat (due to us using the land), lifestyle
What are the five main drivers of biodiversity loss in the EU’s 2030 Biodiversity Strategy?
- Changes in land and sea use
- Overexploitation
- Climate change
- Pollution
- Invasive alien species
These drivers result in nature degradation and significant biodiversity loss, with 60% decline in wildlife populations over four decades
EU nature directives
a. birds directive: happened at the time when there was no specific legal basis
b. habitats directive: it’s a council directive
- however, they are not the only ones concerning itself with biodiversity
If we would have to adopt these today, we would use article 191 TFEU. So it will be a council and the parliament adopting this, so more democratic reliability
Under art 192 there has been different legisaltion adopted. And the two acts would be seen as environmental quality legislation if it were adopted today
The ‘Natura 2000’
In addition to protecting areas (habitat), we are also protecting species in both acts. Habitats is more broad, looking at all sorts of animals
= a network of protected areas that was created by both the Birds Directive and the Habitats Directive
What is the Birds Directive, and what are its core features?
Main reason was because there were 1000’s of birds being killed. It imposed a restriction on hunting.
- The key way in which it protects the wild birds is by protecting the habitat, but also the species directly
- Originally Directive 79/409/EEC, now Directive 2009/147/EC.
- Adopted under Article 352 TFEU (formerly Art. 308 EC), due to lack of explicit environmental competence at the time.
- Purpose: Protection of wild bird species and their habitats
Utilizes Annexes:
Annex I: Threatened species – SPAs required.
Annex II: Huntable species, subject to conditions.
Annex III: Exceptions to otherwise prohibited activities.
Annex IV: Bans on large-scale or non-selective killing methods.
Annex V: Research-related species
➞ the oldest piece of environmental legislation
What is the scope and legal structure of the Habitats Directive (92/43/EEC)?
Adopted in 1992 to implement the Convention on Biological Diversity
- legal basis today = art 192 TFEY
Scope: natural habitats, wild flora and fauna
- natural habitats, wild flora and fauna
Because it was a directive, it required a national transposition ➞ there was a lot of reductancy
art 1 and 2 of habitats directive
Art 1 definitions
- Conservation ➞ what it means etc (conservation status)
- Natural habitats and related concerns
- Natural habitats of species and species-related concepts
Art 2 objectives
- Ensure biodiversity
- Maintain or restore habitats/species at favourable conservation status
mechanisms used by the habitats directive
how it makes art 2 work..
- Concrete obligations to undertake actions (including the natura 2000 framework for instance)
- Prohibition on certain activities (whether in terms of habitat protection or in regards to certain species)
- Provisions on monitoring and reporting (states have to report on what’s happening and how they are doing protecting ➞ to the commission)
- Financial support
Key annexes of the habitats directive
- Natural habitats type of union interest whose conservation requires the designation of SAC ➞ at the birds directive we have the SPA, together they become the natura 2000 (SPA + SAC)
- Animal and plant species
- Criteria for slecting sites eligible for identification
- Animal and plant species in need of strict protection
- Animal and plants which we want to pay extra protection to
Provision which impose obligation of the wider landscape - habitats directive
habitat protection: special protection ➞ special areas of conservation. Art 3 and 6
art 3(3) and art 10 ➞ 10 quite weak, but the combination shows that the is an obligation
How are Natura 2000 sites designated under the Habitats Directive?
➞ improvement from the birds directive, as habitat has a lot more detail
Under Article 4, the SAC designation process involves
-
Member States propose Sites of Community Importance (SCIs): sites must either be natural habitat types or animal/plants listed in the annexes. MS must cary out comprehensive assessmnets
- must be done on the basis of ecological criteria which we can find in annex 3
- European Commission adopts a list of SCIs: (sites of community interest, which eventually become natura 2000) -> in agreement with each MS and in accordance with the annextry. There is a procedure on how the commission adops this list
- Member States designate SCIs as Special Areas of Conservation (SACs): official title and then it is an official site of natura 2000. Important CJEU ruling: Commission v NL
Commission v Netherlands (Case C-3/96)
Can MS say that they aren’t listing sites because it is important for farming? e.g. ➞ this happened in this case.
dutch authorities refused certain areas under the birds directive but they should have listed it because they tiked the boxes of the relevant criteria
- dutch said: balance between conservation and economic and recreational
interests
CJEU findings
* Member States cannot avoid designating relevant sites by undertaking other conservation measures
* If the relevant criteria are applicable, the site must be designated – Member States do not have a discretion to choose only some of them
* Economic requirements cannot play a role in site designation (MS dont have the discretion to not designate certain sites)
What are the obligations under Article 6 of the Habitats Directive?
Art 6 = core provision & case law helps us apply this article
- 6(1) ➞ necessary conservation measures (protect and improve)
- 6(2) ➞ general obligations to take steps to avoid deteriorations
- 6(3) ➞ actions which aren’t linked to the management of the site. Make sure that it isn’t going to negatively impact the environment (significant effects)
- 6(4) ➞ imperative reasons why you need to go ahead with the project
What did the CJEU decide in Waddenvereniging?
- Preliminary reference from a Dutch court
- Dutch nature protection associations challenging permits for cockle fashioning in the Wadden sea
- Questions re interpretation of Article 6(2) and 6(3) of the Habitats Directive (Dutch authorities said they didn’t have to do anything under art 6 because they always give these permits)
CJEU findings
- Mechanical fishing = “project/plan” under Art. 6(3). because it is quite broad
- If we are talking about plan or project, we must look at art 6(3) and what they say about it (If Art. 6(3) applies, Art. 6(2) does not need separate application)
- Assessment under Art 6(3) is necessary unless it is excluded that there will be a significant effect – strong emphasis on the precautionary principle
- ‘Significant effect’ if likely to undermine the site’s
conservation objectives
Art. 6(3) has direct effect, enforceable by national courts
Case C-441/17 Commission v Poland
- infringement proceedings
- The only old forest of the EU ➞ see slides. Part of natura 2000. In part of these sites you could cut trees, and ones they did this to the maximum
- They came up with a plan to cut a lot of trees ➞ regional plan for conservation
- 2016 ministerial approval: claimed this is necessary to deal with the spread of bruce bark beetle. But it was pretty much bullshit
CJEU findings
Breach of art 6(3) (can only give a green light when absolutely certain)
- In this case there was no proper assessment.
- Adverse effect was definetly likely. So couldn’t say that they are taking compensating measures
- Poland could not rely on Art. 6(4) due to lack of prior assessment and compensatory measures
Breach of art 6(1) ➞ cannot be seen as a conservation measure
Breach of Art. 12(1)(a)(d): disturbance and destruction of protected species.
Case C-521/12 Briels
- preliminary reference of Dutch court
- Widening an A2 motorway ➞ to improve the hydrological situation. So there was a compensation
- Claim by private parties against the ministry of environment: application of art 6(3) and 6(4)
CJEU findings
the court disagreed
- Cannot claim this at the state of art 6(3) ➞ you have to undertake an assesment. Can’t go ahead with it if it has adverse effect. If it does, only then you can go ahead with art 6(4)
- The conditions set in art 6(4) must be met before any compensatory measures can apply
Protection of species under the directive
Art 12 habitats
➞ prohibition of a number of activities
- Strict protection of animal special in annex IVa
- Strict protection of plant species in annex IVb
