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Legal instruments of secondary environmental legislation


... GMO 62 The eighth recital to Regulation No 258/97 ... the reasoned opinion ... concluded between the competent public authorities of the ... – PowerPoint PPT presentation

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Title: Legal instruments of secondary environmental legislation

Legal instruments of secondary environmental
legislation administrative instruments
  • Prof. Gyula Bándi

Administrative procedures and instrumentsNotific
  • Seveso II. directive (Council Directive 96/82/EC)
    the notification shall contain the following
  • the name or trade name of the operator and the
    full address of the establishment concerned, the
    company register number, the telephon or telefax
    numbers, also e-mail address
  • the registered place of business of the operator,
    with the full address, size and land register
  • the name or position of the person in charge of
    the establishment, if different from (a)
  • information sufficient to identify the dangerous
    substances or category of substances involved and
    which provide assisstance in idetifying the
    dangerous substance
  • the quantity and physical form of the dangerous
    substance or substances involved
  • the actual or proposed activity of the
    installation or storage facility, the
    determination of operations, tasks and operating
  • the immediate environment of the establishment
    which could be affected by the likely major
    accident based upon the similar methods and
    conditions of determining the impact area along
    the lines of environmental impact assessment
  • The operator is obliged to report any significant
    changes related to the registered activity to the
    authorities immediately at their occurance, thus,
    in particular
  • significant increase of the quantity of the
    hazardous substance at issue, or cases of
    significant change occured in its nature or
    physical appearance, or cases of change in the
    utilisation or application process
  • in case of temporary closing of the establishment.

  • C-215/04, preliminary ruling Marius Pedersen
  • 49 In that regard, taking account of the fact
    that the competent authorities must be duly
    informed, by way of prior notification, of the
    type, movement and disposal or recovery of the
    waste, so that they may take all necessary
    measures for the protection of human health and
    the environment, including the possibility of
    raising reasoned objections to the shipment, it
    is necessary to maintain the rights of those
    authorities to request additional information
    when they consider that the notification is
    incomplete, rights conferred on them by Article
    6(4) of Regulation No 259/93.

  • Case C-270/03, Commission vs. Italy
  • 21 The objective of Directive 91/156 was,
    inter alia, to reinforce control by the public
    authorities. The 12th recital in the preamble
    thus states that, in order that waste can be
    monitored from its production to its final
    disposal, other undertakings involved with waste,
    such as waste collectors, carriers and brokers
    should also be subject to authorisation or
    registration and appropriate inspection. New
    provisions were inserted into Article 12 of the
    directive for that purpose. Those provisions
    specifically state that undertakings which
    transport waste, where not subject to
    authorisation, are required to be registered and
    that the undertakings subject to that obligation
    are those which carry out such transport on a
    professional basis. Directive 91/156 thus
    replaced mere supervision, which no longer
    appears as such in the directive, with an
    obligation of registration.
  • 29 It follows from the foregoing considerations
    that Article 12 of the directive imposes an
    obligation of registration on establishments or
    undertakings which, in the course of their
    activities, normally and regularly transport
    waste, whether that waste is produced by them or
    by others. Furthermore, there is no provision in
    the directive for any exceptions to that
    obligation, based on the type or quantity of

  • Case C-354/99, Commission vs. Ireland on animal
  • 32 One of the conditions is that the licence
    holder is to ensure that detailed records are
    maintained of the source, use and final disposal
    of all animals accommodated in the establishment
    for scientific purposes and that these records
    are available for inspection by the Minister for
    Health or an inspector appointed by the Minister.
  • 33 In that connection, it must be pointed out
    that Article 11 of the Directive has not been
    implemented in full since the relevant national
    provisions do not provide for any form of
    supervision by a competent authority of the
    setting free of animals.

  • Classification generally takes place based on the
    environmental risk or environmental state, thus
    belonging to various classes, at the same time,
    provides a basis for a different scope of
  • Case C-67/99, Commission vs. Ireland Natura
  • Tthe Court stated that designation
    classification - of a SAC territory has four
    steps, namely
  • the Member State proposes the designation of the
  • the Commission prepares a draft list,
  • the Commission subsequently accepts the proposal
    in accordance with a specified procedure,
  • the Member State designates the territory.

  • 29 With regard to the obligation to transmit
    the site list referred to in Article 4(1), first
    subparagraph, of the directive, the Commission
    points out that each Member State's contribution
    to the setting up of a coherent European
    ecological network depends on the representation
    on its territory of the natural habitat types and
    species' habitats listed in Annexes I and II to
    the directive respectively. It is clear from the
    combined provisions of Article 4(1) of and Annex
    III to the directive that Member States enjoy a
    certain margin of discretion when selecting sites
    for inclusion in the list. The exercise of that
    discretion is, however, in the Commission's view,
    subject to compliance with the following three
  • - only criteria of a scientific nature may guide
    the choice of the sites to be proposed
  • - the sites proposed must provide a geographical
    cover which is homogeneous and representative of
    the entire territory of each Member State, with a
    view to ensuring the coherence and balance of the
    resulting network. The list to be submitted by
    each Member State must therefore reflect the
    ecological variety (and, in the case of species,
    the genetic variety) of the natural habitats and
    species present within its territory
  • - the list must be complete, that is to say, each
    Member State must propose a number of sites which
    will ensure sufficient representation of all the
    natural habitat types listed in Annex I and all
    the species' habitats listed in Annex II to the
    directive which exist on its territory.

  • Case C-280/02, Commission vs. Republic of France
  • 67 The French Government does not dispute that
    nutrient inputs, in particular nitrogen, from
    urban sources transported by the Vilaine river
    play an important role in eutrophication of the
  • 68 It maintains that it has already classified
    the Vilaine catchment basin as an area sensitive
    to eutrophication, so that all agglomerations
    with a p.e. of more than 10 000 which discharge
    their effluent into that basin are subject to the
    provisions of Directive 91/271. The
    identification of Vilaine bay as an area
    sensitive to eutrophication is of no importance,
    inasmuch as no agglomeration with a p.e. of more
    than 10 000 discharges directly into that bay
    and, contrary to what the Commission maintains,
    fluvial inputs from the Loire would not have any
    influence on that bay, so that the French
    Government takes the view that it has not failed
    to fulfil its obligations.
  • 69 In that regard, even if no agglomeration with
    a p.e. of more than 10 000 discharges directly
    into Vilaine bay and, contrary to what the
    Commission maintains, fluvial inputs from the
    Loire do not have any influence on that bay, the
    fact that the catchment basin of the Vilaine
    river has already been identified as an area
    sensitive to eutrophication does not warrant not
    also classifying that bay as such. It follows
    from Article 5(1) of Directive 91/271, in
    conjunction with Annex II.A(a), that Member
    States are required to identify as sensitive
    areas all eutrophic water bodies.
  • 70 Therefore, by failing to identify Vilaine bay
    as an area sensitive to eutrophication within the
    meaning of Directive 91/271, the French Republic
    has failed to fulfil its obligations.

Authorisation, Permission
  • Council Directive 96/61/EC determining the system
    of integrated pollution prevention and control is
    a good example of how the directive determines
    the definition of permit in paragraph 9 of
    Article 2
  • 'permit shall mean that part or the whole of a
    written decision (or several such decisions)
    granting authorization to operate all or part of
    an installation, subject to certain conditions
    which guarantee that the installation complies
    with the requirements of this Directive. A permit
    may cover one or more installations or parts of
    installations on the same site operated by the
    same operator.
  • EIA development consent

  • Case C-290/03, preliminary ruling based on a
    submission by Diane Barker
  • 38 By its first question, the national court
    essentially asks whether classification of a
    decision as a development consent within the
    meaning of Article 1(2) of Directive 85/337
    depends exclusively on national law.
  • 39 Article 1(2) of Directive 85/337 defines
    development consent for the purposes of the
    directive as the decision of the competent
    authority or authorities which entitles the
    developer to proceed with the project.
  • 40 Thus, while this term is modelled on certain
    elements of national law, it remains a Community
    concept which, contrary to the submissions of
    Bromley LBC and the United Kingdom Government,
    falls exclusively within Community law. According
    to settled case-law, the terms used in a
    provision of Community law which makes no express
    reference to the law of the Member States for the
    purpose of determining its meaning and scope are
    normally to be given throughout the Community an
    autonomous and uniform interpretation which must
    take into account the context of the provision
    and the purpose of the legislation in question
    (see, to this effect, Case 327/82 Ekro 1984 ECR
    107, paragraph 11 Case C-287/98 Linster 2000
    ECR I-6917, paragraph 43 and Case C-201/02 Wells
    2004 ECR I-723, paragraph 37).
  • 41 The answer to the first question must
    therefore be that classification of a decision as
    a development consent within the meaning of
    Article 1(2) of Directive 85/337 must be carried
    out pursuant to national law in a manner
    consistent with Community law.

  • Case 240/83, preliminary ruling in the Procureur
    de la République vs. Association de défense des
    brûleurs d'huiles usagées (ADBHU) case, submitted
    by the Tribunal de grande instance de Créteil,
  • 25 As has already been emphasized, the main aim
    of the directive is the disposal of waste oil in
    a manner which is safe for the environment, and
    Article 2 makes it incumbent upon the Member
    States to pursue that aim.
  • 27 In order to ensure compliance with those
    measures, Article 6 provides that any undertaking
    which disposes of waste oils must obtain a permit
    granted by the competent national authority, if
    necessary after an inspection of the
    installations, with a view to imposing the
    conditions required by the state of technical
    development .
  • 29 It follows from those provisions that the
    directive requires Member States to prohibit any
    form of waste-oil disposal which has harmful
    effects on the environment. It is to that end
    that the directive compels Member States to set
    up an effective system of prior approval and
    subsequent inspections.

  • Case C-127/02, preliminary ruling - Waddenzee
  • 29 The answer to Question 1(a) must therefore
    be that mechanical cockle fishing which has been
    carried on for many years but for which a licence
    is granted annually for a limited period, with
    each licence entailing a new assessment both of
    the possibility of carrying on that activity and
    of the site where it may be carried on, falls
    within the concept of plan or project within
    the meaning of Article 6(3) of the Habitats
  • 36 Authorisation of a plan or project granted in
    accordance with Article 6(3) of the Habitats
    Directive necessarily assumes that it is
    considered not likely adversely to affect the
    integrity of the site concerned and,
    consequently, not likely to give rise to
    deterioration or significant disturbances within
    the meaning of Article 6(2).
  • 56 It is therefore apparent that the plan or
    project in question may be granted authorisation
    only on the condition that the competent national
    authorities are convinced that it will not
    adversely affect the integrity of the site

  • Case C-282/02, Commission vs. Ireland
  • 77 the argument put forward by Ireland that
    the prohibitory regime established by the 1977
    Act is a more stringent measure within the
    terms of Article 10 of the Directive.
  • 78 Although, in principle, a prohibitory regime
    constitutes an alternative to an authorisation
    system, in accordance with the requirements of
    the Directive, Ireland has failed to demonstrate
    that the prohibitory regime established by the
    1977 Act can effectively replace the
    authorisation system as envisaged by the
  • 79 The prohibitory regime set out in section
    3(1) of the 1977 Act is accompanied, in section
    3(3), by a clause releasing from liability any
    person concerned who proves that he took all
    reasonable care to prevent pollutants from
    entering water. Effective application of this
    regime is guaranteed by the powers vested in the
    judicial authorities (section 11) and local
    authorities (section 12). The latter section
    allows local authorities to issue notices to
    persons responsible for a source of pollution
    enjoining them to take specific measures to
    counter pollution. By contrast, that statute
    makes no mention of quality objectives or
    programmes for the reduction of water pollution.
  • 80 In the first place, the 1977 Act does not
    contain precise provisions allowing individuals
    to refer to a clear, precise and unequivocal
    legal framework, as required by the Court the
    1977 Act does not contain an enumeration of the
    pollutants within the terms of List II of the
    annex to the Directive, which prevents those
    concerned from knowing the true scope of that
  • 81 Next, the effectiveness of the system rests
    in large measure on the notices issued by local
    authorities on foot of section 12. Those notices
    are, however, issued in a discretionary manner by
    each local authority in each specific situation,
    with no relation to any parameter as to water
    quality, which is lacking in that statute. This
    absence of uniform statutory criteria does not
    guarantee a homogenous, comprehensive and
    consistent application of the Directive.
  • 82 Finally, with regard to the exemption clause
    in section 3(3) of the 1977 Act, that section
    does not specify the scope and nature of the
    measures to be adopted for such an exemption,
    leaving as it does to each local authority, each
    time that a case arises, the assessment of
    whether the measures adopted are reasonable.
    Considered thus, such a system is not equivalent
    to a system under which all pollution reduction
    aspects are defined in advance in a manner which
    is clear, precise and unequivocal.

Product classification
  • Analysis of the products life cycle
  • One of the best examples is the so-called type
    approval in the area of EU noise regulation
  • According to the fundamental principles that
    appear in the regulation related to noise and
    which are derived from the EU basic structure,
  • only the trade and use of those products is
    allowed and cannot be restricted within the EU
    which products meet the harmonised requirements
  • as a result, the trade and use of the products
    that meet the harmonised requirements is free and
    cannot be restricted within the EU.

  • C-132/03, preliminary ruling GMO
  • 62 The eighth recital to Regulation No 258/97
    states that the additional specific labelling
    requirements laid down by the regulation are
    intended to ensure that the necessary information
    about the foodstuffs in question is available to
    the consumer. It adds that those foodstuffs must
    be safe for human health and that that assurance
    is to be provided for by the authorisation
    procedure set out in Directive 90/220 and/or by
    the single assessment procedure laid down by
    Regulation No 258/97.
  • 63 The GMOs to which Regulation No 1139/98
    refers can be placed on the market only if they
    have first been authorised following a risk
    assessment intended to ensure that, in the light
    of the conclusions of the assessment, they are
    safe for the consumer. The precautionary
    principle, where relevant, is part of such a
    decision-making process (see, to that effect, the
    judgment in Monsanto Agricoltura Italia, cited
    above, paragraph 133).

Prohibition and obligation
  • Case C-98/03, Commission vs. Federal Republic of
  • 66      According to settled case-law, Articles
    12, 13 and 16 of the Directive form a coherent
    body of provisions (see, Commission v United
    Kingdom, paragraph 112). Articles 12 and 13
    require Member States to establish a system of
    strict protection for animal and plant species.
  • 67 Paragraph 6(1) of the PflSchG, by listing
    the situations in which the use of pesticides is
    prohibited, does not express in a clear, specific
    and strict manner the measures laid down in
    Articles 12 and 13 of the Directive which
    prohibit protected species from being adversely
  • 76      It is clear from the file that, when the
    period set down in the reasoned opinion expired,
    Bremens legislation authorised, inter alia, the
    capture of fish all year round so long as no
    fishing bans were issued. Coregonus oxyrhynchus
    is not the subject of a fishing ban. In
    Brandenburg neither that species nor unio crassus
    are the subject of a fishing ban. As to Bremens
    legislation, the German Government has
    acknowledged that it is not in accordance with
    the Directive.
  • 78      In those circumstances, it must be stated
    that the legislative framework existing in
    Germany, in which regional provisions which
    infringe Community law coexist with a Federal law
    which complies with it, does not ensure
    effectively, and in a clear and precise manner,
    in respect of the three animal species at issue
    in this case, the strict protection required by
    Article 12(1)(a) of the Directive, with respect
    to the prohibition of all forms of deliberate
    capture and killing of specimens of those species
    in the wild.

Control, monitoring
  • Case C-6/04, Commission vs. United Kingdom
  • 21 Under the third paragraph of Article 249
    EC, a directive is binding, as to the result to
    be achieved, upon each Member State to which it
    is addressed, but leaves to the national
    authorities the choice of form and methods for
    implementing the directive in question in
    domestic law. However, in accordance with settled
    case-law, while the transposition of a directive
    into domestic law does not necessarily require
    that the content of the directive be incorporated
    formally and verbatim in express, specific
    legislation and, depending on its content, a
    general legal context may be adequate for the
    purpose, that is on condition that that context
    does indeed guarantee the full application of the
    directive in a sufficiently clear and precise
  • 23 The United Kingdoms argument that the most
    appropriate way of implementing the Habitats
    Directive is to confer specific powers on nature
    conservation bodies and to impose on them the
    general duty to exercise their functions so as to
    secure compliance with the requirements of that
    directive cannot be upheld.
  • 24 First, it is to be remembered that the
    existence of national rules may render
    transposition by specific legislative or
    regulatory measures superfluous only if those
    rules actually ensure the full application of the
    directive in question by the national
  • 25 Second, it is apparent from the 4th and
    11th recitals in the preamble to the Habitats
    Directive that threatened habitats and species
    form part of the European Communitys natural
    heritage and that the threats to them are often
    of a transboundary nature, so that the adoption
    of conservation measures is a common
    responsibility of all Member States.
    Consequently, as the Advocate General has
    observed in point 11 of her Opinion, faithful
    transposition becomes particularly important in
    an instance such as the present one, where
    management of the common heritage is entrusted to
    the Member States in their respective territories
  • 26 It follows that, in the context of the
    Habitats Directive, which lays down complex and
    technical rules in the field of environmental
    law, the Member States are under a particular
    duty to ensure that their legislation intended to
    transpose that directive is clear and precise,
    including with regard to the fundamental
    surveillance and monitoring obligations, such as
    those imposed on national authorities by Articles
    11, 12(4) and 14(2) of the directive.

Voluntary instruments
  • On November 27, 1996, the Commission adopted the
    communication on environmental agreements between
    environmental authorities and the industry and on
    the unilateral assumption of obligations by the
    industry, which aims at the promotion of the
    application of legal instruments.
  • It is a fundamental requirement that the
    agreement should be as specific as possible, and
    its promotion can be served by, among others, the
    determination of specific quantitative
    objectives. The communication outlines directives
    for agreements to be made between authorities and
    the industry in the area of environmental
  • The regulation on packaging waste (94/62/EC) is a
    good example of the significance of voluntary
    instruments. Already in its preamble, it
    indicates the application of these possibilities
  • Whereas the management of packaging and
    packaging waste requires the Member States to set
    up return, collection and recovery systems
    whereas such systems should be open to the
    participation of all interested parties and be
    designed to avoid discrimination against imported
    products and barriers to trade or distortions of
    competition and to guarantee the maximum possible
    return of packaging and packaging waste, in
    accordance with the Treaty
  • The definition of voluntary agreement that is
    included among the definitions of Article 3(12)
  • 12. 'voluntary agreement shall mean the formal
    agreement concluded between the competent public
    authorities of the Member State and the economic
    sectors concerned, which has to be open to all
    partners who wish to meet the conditions of the
    agreement with a view to working towards the
    objectives of this Directive.

    PARLIAMENT AND OF THE COUNCIL of 25 November 2009
    on the voluntary participation by organisations
    in a Community eco-management and audit scheme
  • (8)Organisations should be encouraged to
    participate in EMAS on a voluntary basis and may
    gain added value in terms of regulatory control,
    cost savings and public image provided that they
    are able to demonstrate an improvement of their
    environmental performance.
  • Article 1 Objective
  • A Community eco-management and audit scheme,
    hereinafter referred to as EMAS, is hereby
    established, allowing voluntary participation by
    organisations located inside or outside the
  • The objective of EMAS, as an important instrument
    of the Sustainable Consumption and Production and
    Sustainable Industrial Policy Action Plan, is to
    promote continuous improvements in the
    environmental performance of organisations by the
    establishment and implementation of environmental
    management systems by organisations, the
    systematic, objective and periodic evaluation of
    the performance of such systems, the provision of
    information on environmental performance, an open
    dialogue with the public and other interested
    parties and the active involvement of employees
    in organisations and appropriate training.

Economic instruments
  • Case C-213/96, preliminary ruling - Outokumpu Oy
  • 30. As regards the compatibility of such a duty
    with Article 95 of the Treaty, it is settled
    case-law, first, that in its present state of
    development Community law does not restrict the
    freedom of each Member State to establish a tax
    system which differentiates between certain
    products, even products which are similar within
    the meaning of the first paragraph of Article 95
    of the Treaty, on the basis of objective
    criteria, such as the nature of the raw materials
    used or the production processes employed. Such
    differentiation is compatible with Community law,
    however, only if it pursues objectives which are
    themselves compatible with the requirements of
    the Treaty and its secondary legislation, and if
    the detailed rules are such as to avoid any form
    of discrimination, direct or indirect, against
    imports from other Member States or any form of
    protection of competing domestic products.

  • Case C-201/08, preliminary ruling, Plantanol
  • 35      It must be pointed out that Directive
    2003/30 also does not impose any requirements on
    the Member States in regard to the method of
    attaining those indicative targets, but leaves
    them freedom of choice in this regard as to the
    type of measures to be adopted, thus leaving them
    a wide discretion to take account, in particular,
    of the availability of resources and raw
    materials and of national policies to promote
    biofuels, as can be seen from recital 20 to the
  • 36      It follows that the provisions of
    Directive 2003/30 do not require the Member
    States to introduce, or maintain in force, a tax
    exemption scheme for biofuels. It is clear in
    that regard from recital 19 to the directive
    that, although a tax exemption scheme is one of
    the means available to the Member States for
    attaining the objectives laid down in the
    directive, other means may also be envisaged,
    such as financial assistance for the processing
    industry and the establishment of a compulsory
    rate of biofuels for oil companies.
  • 37      Moreover, it is apparent from Article
    3(4) of Directive 2003/30 that the Member States
    also enjoy a wide discretion with regard to the
    products which they wish to promote in order to
    attain the objectives laid down in the directive,
    since they may choose to give priority to the
    promotion of certain types of fuels by taking
    account of their overall cost-effective climate
    and environmental balance, while also taking into
    account competitiveness and security of supply.
  • 38      In those circumstances, it must be
    decided that no right to a tax exemption can be
    deduced from the provisions of the directive,
    particularly in regard to a specific product.
  • 39      Quite the contrary, it is clear from
    Article 1 of Directive 2003/96 that the Member
    States are, in principle, required to tax a
    product such as the one at issue in the main
  • 40      However, Article 16(1) of Directive
    2003/96 provides that the Member States may apply
    an exemption or a reduced rate of taxation on
    such energy products

  • Case C-254/08, Futura Immobiliare srl Hotel
    Futura, and others
  • 19      Futura Immobiliare and Others are hotel
    businesses in the municipality of Casoria. On
    that basis, they must pay the waste tax. However,
    under the latter tax, hoteliers are taxed more
    heavily than individuals occupying residential
  • 44      Accordingly, in circumstances such as
    those in the main proceedings, where holders of
    waste have it handled by a collector, Article
    15(a) of Directive 2006/12 provides that, in
    accordance with the polluter pays principle,
    the cost of disposing of the waste must be borne
    by those holders.
  • 54      In that regard, it must be found that,
    when calculating a waste disposal tax or charge,
    a distinction drawn for fiscal purposes between
    categories of users of the urban waste collection
    and disposal service like that drawn by the
    national legislation at issue in the main
    proceedings between hotel undertakings and
    individuals which is based on objective
    criteria having a direct relationship with the
    cost of the service, such as their
    waste-production capacity or the nature of the
    waste produced, may prove appropriate for
    achieving the objective of financing the service.
  • 55      While the distinction drawn for fiscal
    purposes must not go beyond what is necessary in
    order to achieve that financing objective, it is
    however to be noted that here, as Community law
    currently stands, the competent national
    authorities have a broad discretion when
    determining the manner in which such a tax or
    charge is calculated.
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