EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND...

EU LEGISLATION ON NATURE PROTECTION

2011- European Commission

COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE FIELD OF EU ENVIRONMENTAL LAW

WORKSHOP ON EU LEGISLATION

NATURE PROTECTION

© 2010 Microsoft Corporation. All rights reserved.

EU environmental law and national Courts : an introduction

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EU environmental law Air quality

GMOsPublic Participation inenvironmentaldecisions

Pollution controlof industrial installations

Water quality,Waste water,Drinking water

Protectingbiodiversity

Waste management

Drawings Benoît Clément -2011-

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Objectives and legal basis for EU environmental law Art 3(3) TEU – objectives of the EU:

“The Union shall work for sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment”.

Art 191, 192 and 193 TFEU (replacing Articles 174, 175, 176).

Art 191(4): a new legal basis for climate change

Art 194: a new legal basis for EU energy policy

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Two ways to ensure compliance with EU law:

• Role of the Commission:

– Guardian of the Treaties: Art 17 TEU

– Specific procedures in Art 258 and 260 TFEU

• Role of national judges and role of the Court of Justice of the European Union

– The concept of « direct effect »

– Indirect effect

– National procedural autonomy (?)

– Preliminary rulings

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The mission of the Commission

Article 17 TUE

“The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union.(…)

2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise (…)”

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Bringing a case to the Court of Justice

Article 258 TFEU

«If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. »

3 types of infringement procedures:

– Non-communication cases

– Non-conformity cases

– Bad-application cases

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Letter of formal notice

2 months for reply

2 months for reply

Technicalmeetings

Technicalmeetings

Reasoned Opinion Court of Justice

Judgement ofthe ECJ

Drawings Benoît Clément, 2011,

How does the procedure work in practice ? (1st phase article 258 TFEU)

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Novelty for “non communication” cases: Art 260(3) TFEU

Financialpenalties

2 months for reply

2 months for reply

Technicalmeetings

Technicalmeetings

Reasoned Opinion Court of Justice

Judgement ofthe ECJ

€



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The nature of the infringement procedure Tool for elite co-operation

Objective law-enforcement tool

• No need for the Commission to demonstrate a specific motive or interest to bring action before the Court

• No restrictions on time for bringing an action

Channel for individuals to complain:

• No means to force Commission to initiate procedure (C-247/87 Star Fruit case)

• Not party to the procedure (T-191/99 – Petrie case)

• Improvements because of EU Ombudsman

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Infringements of EU ENV law by country (1 September 2010)

46

810 11 12 12 12 12 12 12 13 13 13 13

1921

23 23 2326 26 26

31

3942

52

0

10

20

30

40

50

60

LV NL SIM

TDK AT

CY DE FILU

SK EE HU LTSE BG UK BE CZ

FR PL PTRO IE EL

ES IT

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Infringement of EU environmental law by topic (1 September 2010)

Impact10%

Eau23%

Information3%

Air15%

Produits chimiques

15%

Nature19%

Déchets15%

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Second referral to the Court Article 260(2) TFEU

“If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.”

In practice, both a lump sum and a daily penalty will be asked (C-304/02; Commission v. France)

■ Daily penalty = uniform flat rate per day multiplied by factors reflecting duration and seriousness of breach and a factor

ensuring a deterrent effect of the penalty

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Second referral to the Court in practice


Penalties andlump-sum

Second judgmentof ECJ

2 monthsfor reply

Court of Justice

Technicalmeetings

First judgment ofECJ €


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Article 260 cases involving EU environmental law by country (1 September 2010)

1 1 1 1

2 2 2

3 3

4

5 5

8

11

12

0

2

4

6

8

10

12

14

AT CZ EE NL LU MT SE BE UK ES FR PT EL IE IT

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Action at the level of national courts and the concept of direct effect

• A provision of EU law has direct effect (can be invoked and relied on by individuals before national courts), if:

– it is intended to confer rights on individuals and– if it is sufficiently clear, precise and unconditional

• National judges are « EU law judges »

• Applies to all binding EU law

– C-26/62: Van Gend en Loos (Treaty provisions)– C 39/72: Slaughtered cows case (Regulations)– C-9/70 Grad (Decisions) …– International treaties (not all)

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Direct effect and directives

• “Binding as to the result to be achieved” and leave MS the choice of form and method (against direct effect)

• Reasons for direct effect:

– C-41/74: Van Duyn v. Home Office: • Useful effect would be weakened

• Implied in the preliminary rulings procedure

– Doctrine of estoppel (C-148/78 Ratti)

• Only vertical direct effect (C-152/84: Marshall):

• Directives are addressed to MS + punitive reasoning• Maintaining distinction between different EU acts

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Expanding direct effect: indirect effect

• Obligation to interpret national law in conformity with EU law (C-14/83 Von Colson)

• Even in a litigation between private parties (C-106/89 Marleasing)

• All national law, even if it pre-dates the directive and is not designed to implement it (Marleasing + C-62/00 Marks&Spencer)

• “in so far as possible”/ contra lege interpretation not required

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• Only after the expiry of the time limit for transposition (C-212/04 Adeneler)

– Inter-Environment Wallonie (C-129/96) and Mangold (C-144/04)

• National courts must do it also “on their own motion” (C-72/95 Kraaijeveld)

• Principle of non-retroactivity of penal liability (C-80/86 Kolpinguis Nijmegen)

Expanding direct effect: indirect effect (2)

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National procedural rules

• New Art 19(1) TEU: “MS shall provide remedies sufficient to ensure effective legal protection in the fields covered by EU law”

• Conditions for national procedural autonomy (C-33/76 Rewe):

– equivalence/non-discrimination

– Practical possibility/exercise of EU rights should not be made impossible/excessively difficult

– In some cases emphasis on effectiveness: national courts required to make available a specific type of remedy, whether of not it would be available under national law

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• The principle of State liability (C-6&9/90 Francovich)

– Directive grants identifiable individual rights

– Sufficiently serious breach

– Casual link between MS obligation and harm suffered

National procedural rules (2)

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The preliminary reference mechanism

Art 267 TFEU (old article 234 TEC)

• interpretation of EU Treaty and• interpretation and validity of acts of EU institutions (even non-

binding)

Obligation for Supreme courts, possibility for ordinary courts

No obligation: • Precedent• Doctrine of acte-claire:

- The question raised is irrelevant or the correct application of EU law is so obvious as to leave no scope for any reasonable doubt as to the manner to interpret it (C-283/81 CILFIT)

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Preliminary references by country (end of 2009)2004-2009

1961-2003

125 145

222

614

9 12 651

1007

2 7 864

27 1

743

348

2467

2 2 358 81

476

783

0

200

400

600

800

1000

1200

1400

1600

1800

BE BG CZDK DE EE EL ES FR IE IT CY LV LT LU HU M

T NL AT PL PTRO SI

SK FISE

UK

1731

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Conclusion : 2 complementary ways to ensure compliance with EU law:

EU law implementation problem

Judgement on failure to fulfil obligations

Referral to a national Court

National judge

Commission is informed or Commission identifies the problem

Commission

Article 267TFEU

Article 258 TFEU

Court of Justice of the European Union

Judgement on preliminary reference

Ruling of

nationalCourt

EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND...

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