Introduction to European and Comparative Environmental Law Michael Mehling University of Greifswald

1
Introduction to European and Comparative
Environmental LawMichael MehlingUniversity of
GreifswaldPart 1 Foundations of European
Environmental Law
UNIVERSITY OF GREIFSWALD CHAIR FOR PUBLIC LAW,
FINANCE AND TAX LAW
2
Origins and Institutions of European
Environmental Law

• Origins and Development of European Environmental
  Law- First non-binding Action Programme on the
  Environment (1973) - Single European Act (SEA,
  1987) inclusion of a new section on the
  environment, Art. 174-176 (ex 130r-130t) EC
  Treaty- Maastricht Treaty (1993) introduction
  of majority decisions in environmental matters
  environmental policy as a task and activity -
  Amsterdam Treaty (1999) introduction of the
  co-decision procedure and the integration
  principle mention of sustainable development.
• Institutional Actors in European Environmental
  Law- European Commission DG XI, placed under
  the Commissioner for the Environment and
  assisted by EEA, IMPEL, EPRG, ECF- Council,
  European Parliament, ECOSOC and ECJ - private
  interest groups organised under the European
  Environmental Bureau (EEB), a non-governmental
  organisation.

3
Environmental Protection as a Task and Activity
of the European Community (1)

• Article 2 EC Treaty
• Article 2The Community shall have as its task,
  () by implementing common policies or activities
  referred to in Articles 3 and 4, to promote
  throughout the Community a harmonious, balanced
  and sustainable development of economic
  activities, () sustainable and non-inflationary
  growth, () a high level of protection and
  improvement of the quality of the environment.
• Article 3 (1) EC Treaty
• For the purposes set out in Article 2, the
  activities of the Community shall include,(e) a
  common policy in the sphere of agriculture and
  fisheries(f) a common policy in the sphere of
  transport(l) a policy in the sphere of the
  environment(p) a contribution to the attainment
  of a high level of health protection.

4
Environmental Protection as a Task and Activity
of the European Community (2)

• Article 5 (1) EC Treaty Subsidiarity Principle
• The Community shall act within the limits of the
  powers conferred upon it by this Treaty and of
  the objectives assigned to it therein. In areas
  which do not fall within its exclusive
  competence, the Community shall take action, in
  accordance with the principle of subsidiarity,
  only if and in so far as the objectives of the
  proposed action cannot be sufficiently achieved
  by the Member States and can therefore, by reason
  of the scale or effects of the proposed action,
  be better achieved by the Community. Any action
  by the Community shall not go beyond what is
  necessary to achieve the objectives of this
  Treaty.

5
Objectives of European Environmental Law

• Article 174 EC Treaty
• ?1. Community policy on the environment shall
  contribute to pursuit of the following
  objectives preserving, protecting and
  improving the quality of the environment
  protecting human health prudent and rational
  utilisation of natural resources promoting
  measures at international level to deal with
  regional or worldwide environmental problems.
• ?Environment is defined in broad terms, so as to
  include economic, social and aesthetic aspects,
  the preservation of natural and archaelogical
  heritage, and the man-made as well as the natural
  environment. It reflects an anthropocentric
  outlook.

6
Principles of European Environmental Law (1)

• Article 174 EC Treaty
• ?2. Community policy on the environment shall aim
  at a high level of protection taking into account
  the diversity of situations in the various
  regions of the Community. It shall be based on
  the precautionary principle and on the principles
  that preventive action should be taken, that
  environmental damage should as a priority be
  rectified at source and that the polluter should
  pay.
• General guidelines for Community environmental
  policy, allowing for wide discretion the Court
  must restrict itself to the question ?whether the
  Council, by adopting the Regulation, committed a
  manifest error of appraisal. (ECJ, Case C-284/95
  Safety Hi-Tech Srl, annot. 37)

7
Principles of European Environmental Law (2)

• The Principles of Art. 174 (2) EC Treaty
• Precautionary and prevention principlesNot
  clearly defined, but usually understood as
  requiring preventive action when ?reasonable
  grounds for concern exist, despite a lack of
  concluding evidence.
• Rectification of damage at sourceEnvironmental
  impairment should be rectified early as close as
  possible to the place of generation to prevent
  further damage.
• Polluter-pays principleThe cost of environmental
  damage and clean-up should not be borne by
  society at large, but by the polluter.

8
Principles of European Environmental Law (3)

• Art 6 EC Treaty
• ?Environmental protection requirements must be
  integrated into the definition and implementation
  of the Community policies and activities referred
  to in Article 3, in particular with a view to
  promoting sustainable development.
• Integration principleEnvironmental
  considerations are to be taken fully into account
  in the elaboration and implementation of other
  Community policies, and may not, thus, be seen in
  isolation from other areas of Community action.
• Sustainable development? development that meets
  the needs of the present without compromising the
  ability of future generations to meet their own
  needs (WCED, Our Common Future, 1987).

9
Instrumentsof European Environmental Law (1)

• Article 174 EC Treaty
• ?3. In preparing its policy on the environment,
  the Community shall take account of available
  scientific and technical data environmental
  conditions in the various regions of the
  Community the potential benefits and costs of
  action or lack of action the economic and
  social development of the Community as a whole
  and the balanced development of its regions.
• The choice of adequate policies is generally
  guided by these ?Conditions for Action and the
  efficacy of available instruments to achieve the
  desired objective, their efficiency,
  equitability, and political viability.

10
Instruments ofEuropean Environmental Law (2)

• Article 175 EC Treaty
• Achievement of environmental policy objectives
  through
• - regulations with direct application -
  directives allowing for discretion in
  implementation - decisions, recommendations and
  opinions - ?action programmes setting out
  priority objectives.
• Procedure for the adoption of policy measures
• - generally adopted jointly by the Council and
  the European Parliament pursuant to the
  procedure of Art. 251 - unanimous Council
  decision (Art. 175 (2)) in case of
• fiscal measures, country planning and land
  use, water resources management and energy
  sources and supply.
• Implementation through the Member States (Art.
  175 (4), 176).

Art. 249
Art. 175 (3)
11
Instrumentsof European Environmental Law (3)

• Classification of Policy Approaches
• Regulatory policies (?command-and-control
  instruments) - performance targets (quality and
  emission standards) - duties of notification and
  authorisation - liability and property rules
• Flexible policies (?economic or ?market-based
  instruments) - financial assistance and
  subsidies - price-based incentives (taxes,
  charges, and levies) - quantity-based incentives
  (tradable emission allowances) - auditing,
  labelling, environmental agreements
• Planning measures
• Horizontal measures
• Sectoral measures.

12
Future Development ofEuropean Environmental Law
(1)

• Sixth Environment Action Programme (2001-2010)
• ?Environment 2010 Our Future, Our Choice
• Four priority areas - Climate Change - Nature
  and Biodiversity - Environment and Health -
  Natural Resources and Waste.
• Five key approaches - Ensure the implementation
  of existing environmental legislation -
  Integrate environmental concerns into all
  relevant policy areas - Work closely with
  business and consumers to identify solutions -
  Ensure better access to information on the
  environment for citizens - Develop an
  environmentally conscious attitude towards land
  use.

13
Future Development ofEuropean Environmental Law
(2)

• The Environment in the Future European
  Constitution (a)
• Article I-3 (3) and (4) The Union's
  objectives The Union shall work for the
  sustainable development of Europe based on
  balanced economic growth, () and with a high
  level of protection and improvement of the
  quality of the environment. It shall () promote
  () solidarity between generations.In its
  relations with the wider world, the Union shall
  () contribute to () the sustainable development
  of the earth.
• Article 13 (2) Areas of shared
  competenceShared competence applies in the
  following principal areas- environment.
• Article II-37 Environmental protectionA
  high level of environmental protection and the
  improvement of the quality of the environment
  must be integrated into the policies of the Union
  and ensured in accordance with the principle of
  sustainable development.

14
Future Development ofEuropean Environmental Law
(3)

• The Environment in the Future European
  Constitution (b)
• Article III-4 Clauses of general application
  Environmental protection requirements must be
  integrated into the definition and implementation
  of the Union policies and activities referred to
  in this Part, in particular with a view to
  promoting sustainable development.
• Article III-129 to 131 EnvironmentUnchanged
  incorporation of Articles 174-176 EC Treaty
• Article III-193 (2) - The Unions external
  actionThe Union shall define and pursue common
  policies and actions, and shall work for a high
  degree of cooperation in all fields of
  international relations, in order to(f) help
  develop international measures to preserve and
  improve the quality of the environment and the
  sustainable management of global natural
  resources, in order to ensure sustainable
  development.

15
Introduction to European and Comparative
Environmental LawMichael MehlingUniversity of
GreifswaldPart 2 Horizontal Measures in
European Environmental Law
UNIVERSITY OF GREIFSWALD CHAIR FOR PUBLIC LAW,
FINANCE AND TAX LAW
16
Horizontal Measures in European Environmental
Law (1)

• Council Directive 85/337/EEC of 27 June 1985 on
  the assessment of the effects of certain public
  and private projects on the environment
  (EIA-Directive), amended 1997 and supplemented
  2001
• Aims at ensuring integration of environmental
  concerns in the preparation and adoption of
  potentially hazardous measures.
• Applies only to public and private projects
  listed in an annex - construction work -
  installations and schemes - other measures -
  includes plans and programmes (since 2001).
• Prior to an authorisation of such projects,
  authorities must perform an assessment of the
  direct and indirect effects the project might
  have on humans and the environment and compile an
  environmental report.
• Public access to relevant information must be
  ensured, as well as consultation of stakeholders
  and environmental authorities.

17
Horizontal Measures in European Environmental
Law (2)

• Council Directive 96/61/EC of 24 September 1996
  concerning integrated pollution prevention and
  control (IPPC-directive)
• Aims at further emissions reductions and
  environmental improvements by departing from the
  traditional command-and-control approach
• Applies only to the installations listed in an
  annex - energy sector - production and
  processing of metals - mineral and chemical
  industries - waste management facilities - food
  production and intensive livestock farming
• Permits for installations must include emission
  limit values for pollutants which are likely to
  be emitted into water, air or land
• Emission limit values are to be based on ?best
  available techniques (BAT), giving regard to
  both technological and economic aspects.

18
Horizontal Measures in European Environmental
Law (3)

• Council Directive 90/313/EEC of 7 June 1990 on
  the freedom of access to information on the
  environment
• Aims at ensuring ensures freedom of access to
  information on the environment held by public
  authorities and sets out the basic terms under
  which such information should be made available.
• Access to environmental information is held to be
  a prerequisite for improved application and
  monitoring of Community environment law. Such
  information is defined widely as comprising -
  written, visual, aural or electronically stored
  data on the state of water, air, soil,
  fauna, flora, land, and natural sites -
  information on potentially hazardous measures and
  activites - information on activities designed
  to mitigate hazards.
• Authorities are required to provide such
  information to any natural or legal person at
  their request and without the need to prove a
  special interest. The costs of such information
  must be reasonable.

19
Horizontal Measures in European Environmental
Law (4)

• Council Regulation 1836/93/EEC of 29 June 1993
  allowing voluntary participation by companies in
  the industrial sector in a Community
  eco-management and audit scheme (EMAS), replaced
  2000 (EMAS II)
• Aims at improving the environmental performance
  of private industry.
• Participation requires the adoption of a
  corporate environmental policy ensuring the
  respect of all applicable environmental
  provisions and setting out the relevant
  objectives and principles of its activities.
• The site or sites in question are then submitted
  to a review, leading to the creation of an
  ?environmental programme.
• Regular auditing is performed by an auditor, and
  an ?environmental statement with ample
  information on the environmental management
  scheme is issued, which is then independently
  reviewed and verified by an accredited and
  independent environmental verifier.
• Finally, the site is listed in a publicly
  accessible register.

20
Horizontal Measures in European Environmental
Law (5)

• Council and Parliament Directive 2004/35/EC on
  environmental liability
• with regard to the prevention and remedying of
  environmental damage
• Aims at implementing the polluter pays
  principle.
• environmental damage means damage caused to the
  aquatic environment, species and habitats, and
  areas protected under Community, national or
  regional legislation, and health risks resulting
  from soil contamination.
• Where there is an imminent threat of
  environmental damage, an authority will require
  the potential polluter to take the necessary
  preventive measures, or will take such measures
  itself and recover the costs incurred at a later
  date.
• Where environmental damage has occurred, the
  competent authority will require the operator
  concerned to take the necessary restorative
  measures, or will take such measures itself and
  recover the costs incurred at a later date.

21
Introduction to European and Comparative
Environmental LawMichael MehlingUniversity of
GreifswaldPart 3 Sectoral Measures in
European Environmental Law
UNIVERSITY OF GREIFSWALD CHAIR FOR PUBLIC LAW,
FINANCE AND TAX LAW
22
Sectoral Issues in European Environmental Law (1)

• Water Resources Protection and Management (a)
• The objectives of Community water policy have
  been outlined in a communication of the
  Commission (COM(96)59 final) 
• securing the supply of drinking water
• securing the supply of water to meet economic
  requirements
• protecting and preserving the aquatic
  environment
• restricting natural disasters, such as floods
  and draughts
• The communication identifies as sources of water
  pollution
• point source pollution
• diffuse source pollution
• accidental pollution
• acidification
• eutrophication

23
Sectoral Issues in European Environmental Law (2)

• Water Resources Protection and Management (b)
• The Community water policy is primarily outlined
  in a recent act of second-ary legislation, the
  Directive 2000/60/EC of the European Parliament
  and of the Council of 23 October 2000,
  establishing a framework for Commun-ity action in
  the field of water policy (Water Framework
  Directive, WFD).
• It establishes a Community framework for the
  protection of inland surface waters, transitional
  waters, coastal waters and groundwater, in order
  to prevent and reduce pollution, promote
  sustainable water use, protect the aquatic
  environment, improve the status of aquatic
  ecosystems and mitigate the effects of floods and
  droughts. To do so, it
• contains common definitions, objectives and
  principles
• repeals and replaces certain existing acts
• requires integrated water management planning
  on a river basin basis

24
Sectoral Issues in European Environmental Law (3)

• Water Resources Protection and Management (c)
• Council Directive 76/160/EEC of 8 December 1975
  concerning the quality of bathing water
  (Bathing Water Directive)
• Council Directive 80/778/EEC of 15 July 1980
  relating to the quality of water intended for
  human consumption (Drinking Water Directive)
• Council Directive 75/440/EEC of 16 June 1975
  concerning the quality required of surface water
  intended for the abstraction of drinking water
  in the Member States (Surface Water Directive)
• Council Directive 91/271/EEC of 21 May 1991
  concerning urban waste water treatment (Urban
  Waste Water Treatment Directive)
• Council Directive 91/676/EEC of 12 December
  1991 concerning the protection of waters
  against pollution caused by nitrates from
  agricultural sources (Nitrate Directive)
• Council Directive 76/464/EEC of 4 May 1976 on
  pollution caused by certain dangerous
  substances discharged into the aquatic
  environment of the Community (Dangerous
  Substances Directive)

25
Sectoral Issues in European Environmental Law (4)

• Air and Noise Pollution (a)
• To establish a long-term, integrated strategy to
  tackle air pollution and to protect against its
  effects on human health and the environment, the
  Co-mmission adopted a communication on May 4,
  2001 "The Clean Air for Europe (CAFE) Programme
  Towards a Thematic Strategy for Air Quality".
• The objectives of this programme are to
• collect and validate scientific information on
  the effects of air pollution
• improve the implementation and effectiveness of
  existing legislation
• ensure that the requisite measures are taken at
  the relevant level
• determine an integrated strategy to include
  appropriate objectives and cost-effective
  measures, addressing particulate matter,
  tropospheric ozone, acidification,
  eutrophication and damage to cultural heritage
• disseminate pertinent information to the
  general public

26
Sectoral Issues in European Environmental Law (5)

• Air and Noise Pollution (b)
• Council Directive 96/62/EC of 27 September 1996
  on ambient air quality assessment and management
  seeks to
• establish quality objectives for ambient air
• draw up common methods and criteria for
  assessing air quality
• obtain and disseminate information on air
  quality.
• To implement the Directive, limit values and
  alert thresholds are to be adopted for the
  following pollutants
• sulphur dioxide, nitrogen dioxide and oxides of
  nitrogen, particulate matter and lead
• benzene and carbon monoxide
• ozone
• polycyclic aromatic hydrocarbons, cadmium,
  arsenic, nickel and mercury

27
Sectoral Issues in European Environmental Law (6)

• Air and Noise Pollution (c)
• Council Directive 70/220/EEC of 20 March 1970
  on the approximation of the laws of the Member
  States relating to measures to be taken against
  air pollution by emissions from motor vehicles
• Council Directive 93/12/EEC of 22 March 1993
  relating to the sulphur content of gasoil
• European Parliament and Council Directive
  1999/94/EC of 13 December 1999 relating to the
  availability of consumer information on fuel
  economy and CO2 emissions in respect of the
  marketing of new passenger cars
• Council Directive 88/609/EEC of 24 November
  1988 on the limitation of emissions of certain
  pollutants into the air from large combustion
  plants
• Council Directive 1999/13/EC of 11 March 1999
  on the limitation of emissions of volatile
  organic compounds due to the use of organic
  solvents in certain activities and installations

28
Sectoral Issues in European Environmental Law (7)

• Waste Management (a)Council Directive
  75/442/EEC of 15 July 1975 on waste
• aims at setting up a system for the coordinated
  management of waste in order to limit waste
  production
• defines waste as
• All substances or objects which the holder
  disposes of or is obliged to dispose of in
  pursuance of the national provisions in force
  in the Member States, except for radioactive and
  mineral waste, carcasses and agricultural
  waste, waste water, gaseous effluents and
  wastes that are subject to specific rules.
• the cost of waste disposal must be borne by its
  holder in accordance with the "polluter pays"
  principle

29
Sectoral Issues in European Environmental Law (8)

• Waste Management (b)
• Under Council Directive 75/442/EEC, Member States
  must
• prohibit the uncontrolled discarding, discharge
  and disposal of waste
• promote the prevention, recycling and
  conversion of wastes with a view to their
  reuse
• cooperate to set up an integrated, adequate
  network of disposal installations (taking
  account of BAT, allowing waste to be disposed of
  in one of the closest installations that
  guarantee a high level of environmental
  protection)
• ensure that all holders of wastes shall hand
  them over to a private or public collection
  agency or to a disposal company, or else conduct
  the disposal in compliance with legal
  requirements

30
Sectoral Issues in European Environmental Law (9)

• Waste Management (c)
• Under Council Directive 75/442/EEC, companies or
  establishments treating, storing or dumping waste
  for another party must obtain an authorization
  from the competent authority which concerns
• the types and quantities of waste to be treated
• the general technical requirements and the
  precautions to be taken
• The competent authorities may routinely check
  compliance with those authorization conditions.
  The same monitoring by the competent authority is
  reserved for transport, collection, storage,
  dumping or treatment companies working on their
  own account or for third parties.

31
Sectoral Issues in European Environmental Law
(10)

• Waste Management (d)
• Council Directive 99/31/EC of 26 April 1999 on
  the landfill of waste seeks to prevent or reduce
  the adverse effects of the landfill of waste on
  the environment, in particular on surface water,
  groundwater, soil, air and human health.
• It applies to all landfills and defines different
  categories of waste
• municipal waste
• hazardous waste
• non-hazardous waste
• inert waste
• The Directive sets up a system of operating
  permits for landfill sites and standard waste
  acceptance procedures to avoid any risks.

32
Nature Protection and BiologicalDiversity in
Europe (1)

• Protecting Nature and Biological Diversity
• Due to their many and obvious functions, nature
  and biological diversity provide important
  benefits. Among incentives for their protection
  are
• the ecosystem services they ensure
• moral, economic and scientific benefits
• European Biodiversity in Danger?
• The impact of human activities and their dramatic
  acceleration in the last few decades have
  affected biodiversity in the European Union
• in some European countries, up to 24 of
  species are now nationally extinct (UNEP Global
  Biodiversity Assessment)
• the decline of biodiversity derives mainly from
  intensive, industrial forms of land use, an
  increased fragmentation of remaining natural
  habitats and the exposure to mass tourism as
  well as pollution of water and air (EEA Dobris
  Assessment)

33
Nature Protection and BiologicalDiversity in
Europe (2)

• International Conventions and the European Union
• The European Community has acceded to several
  international conventions on nature protection
  and biodiversity. These include
• Convention on the Conservation of Migratory
  Species of Wild Animals of June 23, 1979 (Bonn
  Convention)
• Convention on Biological Diversity of June 5,
  1992 (Rio Convention)
• Convention on Tropical Wood of February 16,
  1994 (Timber Convention)
• Convention on Combating Desertification of June
  17, 1994
• The European Community is a party to these
  conventions pursuant to Article 300 EC Treaty and
  may implement them through secondary acts. In
  practice, however, their implementation is
  frequently left to the Member States, which have
  simultaneously concluded the agreements.

34
Nature Protection and BiologicalDiversity in
Europe (3)

• The Community Strategy for Biological Diversity
• A Communication from the Commission of 5 February
  1998 on a European Community Biodiversity
  Strategy (COM(98) 42 final) establishes a general
  framework for Community policies and instruments
  in order to meet the obligations under the Rio
  Convention on Biological Diversity.
• The strategy encompasses four major themes within
  which the specific objectives are determined and
  implemented, in particular through action plans.
  These themes are
• conservation and sustainable use of biological
  diversity
• sharing of benefits accruing from the
  utilisation of genetic resources
• research, identification, monitoring and
  exchange of information
• education, training and awareness

35
Nature Protection and BiologicalDiversity in
Europe (4)

• The Protection of Natural Habitats (a)
• Council Directive 92/43/EEC of 21 May 1992 on
  the conservation of natural habitats and of wild
  fauna and flora (Habitat Directive) aims at
  maintaining biodiversity by conserving natural
  habitats and wild flora and fauna through a
  European ecological network known as Natura 2000.
  
• It provides for the designation of special areas
  of conservation (SAC) by each Member State in
  accordance with the annexes, which list such
  habitats and species whose conservation requires
  special areas of conservation.

36
Nature Protection and BiologicalDiversity in
Europe (5)

• The Protection of Natural Habitats (b)
• Article 3
• A coherent European ecological network of
  special areas of conservation shall be set up
  under the title Natura 2000. This network,
  composed of sites hosting the natural habitat
  types listed in Annex I and habitats of the
  species listed in Annex II, shall enable the
  natural habitat types and the species' habitats
  concerned to be maintained or, where appropriate,
  restored at a favourable conservation status in
  their natural range.

37
Nature Protection and BiologicalDiversity in
Europe (6)

• The Protection of Natural Habitats (c)
• Special areas of conservation are designated in
  three stagesFollowing the criteria set out in
  the annexes, each Member State must draw up a
  list of sites which include natural habitats and
  wild fauna and flora. On the basis of the
  national lists and by agreement with the Member
  States, the Commission will then adopt a list of
  sites of Community importance. Following the
  selection of a site of Community importance, the
  Member State must designate it as a special
  protection area within a strict deadline.

38
Nature Protection and BiologicalDiversity in
Europe (7)

• The Protection of Natural Habitats (d)
• Within the special areas of conservation, Member
  States must take all the necessary measures to
  guarantee the conservation of habitats and to
  avoid their deterioration. Member States must
  also
• encourage the management of features of the
  landscape which are essential for the
  migration, dispersal and genetic exchange of wild
  species
• take the requisite measures to establish a
  system of strict protection for those animal
  and plant species which are particularly
  threatened and study the possibility of
  reintroducing those species on their territory
• prohibit the use of non-selective methods of
  taking, capturing or killing certain animal and
  vegetable species
• The Member States and the Commission should also
  encourage research and scientific work which can
  contribute to these objectives, and provide
  regular reports on the measures taken and their
  success.

39
Nature Protection and BiologicalDiversity in
Europe (8)

• The Protection of Flora and Fauna
• The Habitat Directive establishes a general
  system for the protection of endangered species
  within the community. It prohibits their
  deliberate capture, disturbance, and killing, as
  well as the destruction of breeding, resting, and
  nesting sites.
• Under Council Directive 79/409/EEC of 2 April
  1979 on the conservation of wild birds (Birds
  Directive), all bird species within the European
  Union are protected by restrictions on their
  capture, hunting, or the taking of eggs.
  Moreover, special protection areas must be
  designated for particularly threatened species,
  which then also form part of the Natura 2000
  Network.
• Council Directives 78/659/EEC on the quality of
  fresh waters needing protection or improvement in
  order to support fish life and 79/923/EEC on the
  quality required for shellfish waters (1978 and
  1979) also call for the designation of fresh
  waters to support fish life, with separate
  programmes to ensure compliance with quality
  requirements.