Introduction to EU Environmental Law

Dr. Marc PallemaertsSenior Fellow, Institute for European

Environmental Policy; Professor of European environmental law,

University of Amsterdam; Professor of international and European environmental

law,Université Libre de Bruxelles

Law Faculty, Yerevan State University Yerevan, 14 October 2008

Objectives of the EU

Article 2 of the Treaty establishing the European Community

The Community shall have as its task … to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.

Objectives of EU environmental policy

Article 174(1) of EC Treaty

• 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

Principles of EU environmental policy

Article 174(2) of EC Treaty

• high level of protection • precautionary principle • principle of preventive action • principle of rectification at

source • polluter pays principle

Principle of integration

Article 6 of EC Treaty

Environmental protection requirements must be integrated into the definition and implementation of [all] Community policies and activities … in particular with a view to promoting sustainable development.

Principle of subsidiarity

Article 5 of EC Treaty

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.

Legislative instruments of EU environmental policy

• EU institutions have supranational legislative authority and can issue• Directives: binding upon each

Member State as to the result to be achieved, but choice of form and methods left to national authorities

• Regulations: binding and directly applicable in all Member States

• Primacy of EU law• Main legislative instrument used in

environmental policy = Directive

Obligations of Member States arising from Directives

• Transposition into legally binding norms of domestic law (administrative practice is not sufficient)

• Practical application of these norms in individual situations

• Enforcement in the event of non-compliance (through administrative or criminal sanctions)

Structure of EU environmental law

• Substantive environmental standards applying to specific environmental media or sources of environmental interference (sectoral)

• Procedural environmental standards applying to conduct of environmental policy by public authorities and environmental rights of citizens (horizontal)

Substantive environmental law

Main areas covered:

• Water quality• Air quality• Noise control• Industrial pollution control• Waste prevention and management • Management of chemicals• Management of GMOs• Nature conservation and biodiversity

Procedural environmental law

Main instruments used:

• Integrated environmental permits (IPPC)• Environmental impact assessment (EIA)• Strategic environmental assessment (SEA)• Environmental management and audit

(EMAS)• Freedom of access to environmental

information• Public participation in environmental

decision-making• Access to justice in environmental matters

Water quality

Water Framework Directive (2000/60/EC):

• Overall framework for water policy• Based on integrated river basin

management• Member States to establish river basin

management plans and programmes of measures to achieve « good water status » by 2015

• Combined approach (environmental quality standards and source controls)

Water quality

Specific Directives on:

• Drinking water quality (98/83/EC)

• Urban waste water treatment (91/271/EEC)

• Nitrates from agricultural sources (91/676/EEC)

• Bathing water (2006/7/EC) • Groundwater (2006/118/EC)

Air quality

Framework Directive on ambient air quality assessment and management (96/62/EC):

• Establishment of and compliance with air quality standards for specific pollutants

• Action plans if standards exceeded• Monitoring requirements• Alert thresholds• Information and reporting

requirements

Air quality

Specific Directives on:• National emission ceilings for

specific pollutants (2001/81/EC)• Vehicle emissions• Fuel quality standards• Emissions of volatile organic

compounds (1999/13/EC)• Greenhouse gas emissions

trading (2003/87/EC)

Waste prevention and management

Waste Framework Directive (2006/12/EC):

• Definition of waste, waste recovery and disposal

• General principles of waste management

• Producer responsibility/polluter pays• Permit system for recovery and

disposal operations• Monitoring of waste transport• National waste management plans

Waste prevention and management

Specific Directives for specific types of waste:

• Hazardous waste (91/689/EEC)• Batteries and accumulators

(2006/66/EC)• Packaging and packaging waste

(94/62/EC) • Waste oils (75/439/EEC)• End of life vehicles (2000/53/EC)• Waste electrical and electronic

equipment (2002/96/EC)• Mining waste (2006/21/EC)

Waste prevention and management

Specific Directives establishing environmental standards for specific forms of waste disposal:

• Waste incineration (2000/76/EC)• Landfills (1999/31/EC)

Regulation on transfrontier shipments of waste (1013/2006/EC)

Management of chemicals

New Regulation on Registration, Evaluation and Authorisation of Chemicals (REACH):

• Registration requirement for all substances produced and imported in EU

• Industry to gather and submit information on health and environmental hazards

• Evaluation of risks through systematic procedure

• Most hazardous chemicals only to be used subject to authorization (principle of substitution)

Integrated environmental permit

Directive on Integrated Pollution Prevention and Control (IPPC) (96/61/EC):

• Harmonized list of activities subject to IPPC permit throughout EU

• Member States to ensure activities not operated without permit/permit may not be issued unless activity complies with Directive

• Emission limit values based on best available techniques (BAT)

• Public information and participation• Monitoring and enforcement requirements

Environmental impact assessment

Directive on EIA (85/337/EEC):

• All public/private projects likely to have significant effect on environmental subject to EIA

• Member States may not issue permit before EIA performed

• Harmonized list of projects subject to EIA throughout EU

• Other projects to be determined by Member States

• EIA must be made public/public must be given opportunity to comment before permit is issued

Procedural environmental rights

Conceptual foundation as expressed in Article 1 of Aarhus Convention (approved by EC on 17 February 2005):

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”

Public access to environmental information

Directive on public access to environmental information (2003/4/EC) implements requirements of Aarhus Convention in EU law:

• Broad definition of environmental information• Right of access to environmental information

held by public authorities/citizens need not demonstrate interest

• Limited list of exceptions/public authorities must give reasons for refusal

• Access within 30 days of request• Review procedure available if refusal

Public participation in decision-making

Directive on public participation in environmental decision-making (2003/35/EC) implements requirements of Aarhus Convention in EU law:

• Public participation required in: • procedures for establishment of plans and programmes

relating to the environment• EIA procedures (Directive 85/337/EEC) • IPPC permit procedures (Directive 96/61/EC)

• Public must be notified of application for permit, competent authority, nature of possible decision, available information and where it can be accessed

• Public concerned shall be given early and effective opportunities to participate and be entitled to express comments and opinions when all options are open

• Public must be informed of decision taken and the main reasons and considerations on which it is based

Access to justice in environmental matters

Requirements of Article 9 of Aarhus Convention partly implemented in EU law:

• Member States shall ensure that public concerned has access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions subject to public participation requirements

• Member States shall ensure that person whose request for environmental information has been denied has access to administrative review procedure, followed by review procedure before a court of law or another independent and impartial body established by law

Access to justice in environmental matters

Requirements of Article 9(3) of Aarhus Convention not implemented in EU law but to be implemented by Member States in their national law:

• Where they meet the criteria, if any, laid down in national law, members of the public shall have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of national law relating to the environment.