I. INTRODUCTION
In the three years since last surveyed in the Quarterly,Footnote 1 EU environmental law has continued to justify its reputation as one of the most fast-moving fields of EU law, with a large number of highly significant legislative and jurisprudential developments. This review selects some of the most important areas of development in the field in recent years: in particular, the EU's new environmental action programme for 2013–20, EU climate and energy law, environmental governance and enforcement, and integration of environmental concerns into other EU policy areas.
II. THE EU'S NEW ENVIRONMENTAL ACTION PROGRAMME (2013–20)
Overarching all of the EU's activity in environmental law and policy is the EU's multi-annual Environmental Action Programme (EAP), setting out the key priorities and vision of the EU's environmental policy activity. Since the first EAP was drawn up by the Commission in 1973, the legal status and policy significance of EAPs has increased dramatically, helped by the formalization of their legal basis within what is now Article 192(3) TFEU. Pursuant to this provision, EAPs are adopted in the form of a Decision of the European Parliament and the Council following the ordinary legislative procedure. As the sixth EAP expired in July 2012, it was incumbent on the EU institutions to come up with a successor defining the parameters of EU environmental activity over the years to come.
After some delay, the Commission finally published a proposal for the seventh EAP in November 2012, which expressly recognized that the sixth EAP had not managed to stem the ‘unsustainable trends’ which persisted in all four of that EAP's priority areas: climate change, biodiversity, environment and health, and sustainable use of natural resources/waste management.Footnote 2 The seventh EAP, on which political agreement was reached in June 2013,Footnote 3 identifies nine priority objectives for the EU's environmental policy up to 2020, ranging from the relatively specific (eg protecting the Union's natural capital) to the extremely general (eg turning the Union into ‘a resource-efficient, green and competitive low-carbon economy’). In contrast to the 10-year lifespan of the sixth EAP, the seventh EAP will last only from the second half of 2013 to 2020, due to the delay in its adoption combined with the EU institutions’ eagerness to coordinate this policy instrument with the several other high-level EU policy initiatives relevant to the field, in particular the EU's Resource Efficiency Roadmap,Footnote 4 about which more below, and the 2020 Biodiversity Strategy.Footnote 5
While much of the language used in the seventh EAP is predictably woolly in a high-level instrument of this nature, it does contain some more useful specific elements, including agreement on extending binding EU criteria for environmental inspections to a larger number of legislative areas (discussed further below). In several controversial areas, however, (for instance, on the issue of a potential and long-awaited EU Directive on Soil) no firm political agreement could be reached on language that would commit the EU to legislative action within this period. Nonetheless, the text was broadly welcomed by the environmental community as an improvement on the Commission's original proposal.Footnote 6
III. CLIMATE CHANGE AND ENERGY
Perhaps the most intensive flurry of activity in the EU's environmental policy within the past few years has occurred in the area of climate and energy policy. Externally, the EU has liked to see itself as leader on the climate issue.Footnote 7 In the context of the United Nations Framework Convention on Climate Change (UNFCCC), the EU has generally been a strong supporter of a robust multilateral framework, and supported the extension of the Kyoto Protocol, as the only legally binding instrument extant under the UNFCCC, for a second commitment period at the seventeenth Conference of the Parties in Durban.Footnote 8 It has also been one of the largest contributors to the finance of climate-related projects, including through its Global Climate Change Alliance, through which €280 million was given to projects in least-developed countries and small island developing states between 2008 and 2012. In February 2010, the importance of climate policy to the EU was marked at an institutional level by the creation of a specific directorate-general of the European Commission devoted to climate issues (abbreviated as DG CLIMA). From this point onwards, it has been DG CLIMA (rather than DG Environment) which is responsible for matters such as leading the EU's climate negotiations in international fora, proposing new legislative initiatives in the climate field, and monitoring Member States’ implementation of EU climate legislation.
The creation of DG CLIMA followed the publication of the EU's flagship climate and energy package in 2009, aimed at reaching the so-called 20-20-20 targets by 2020 (ie achieving at 20 per cent reduction in the EU's greenhouse gas (GHG) emissions compared to 1990 levels, achieving a 20 per cent share of the EU's energy consumption for renewables and achieving a 20 per cent improvement in the EU's energy efficiency).Footnote 9 In concrete terms, the 2009 climate and energy package comprised four specific legislative measures:
• A revision to the 2003 Emissions Trading Scheme (ETS) Directive,Footnote 10 which revision took the form of Directive 2009/29;Footnote 11
• The institution of binding targets for Member States in the non-ETS sector, in the form of the so-called Effort Sharing Decision;Footnote 12
• A renewable energy directive, including binding national targets concerning the proportion of overall energy consumption comprised by renewable energy in each Member State;Footnote 13 and
• A directive on carbon capture and storage, ie regulating the process whereby carbon emissions are captured and stored underground with the aim of reducing GHG emissions.Footnote 14
Subsequent developments in these and other climate-related areas are considered further below.
A. The EU's Emissions Trading Scheme (ETS)
Dealing first with the revision to the EU ETS, the 2003 ETS Directive had created the world's first international ETS covering, at least in its initial incarnation, carbon dioxide emissions from around 11,000 large industrial installations (essentially, those covered by the EU's Integrated Pollution Prevention and Control (IPPC) Directive),Footnote 15 amounting to around 40 per cent of the EU's total GHG emissions. As is well known, the aim of the EU ETS is essentially to put a price on GHG emissions, thus incentivizing operators to reduce such emissions in a cost-effective way. The 2009 revision to the 2003 Directive, Directive 2009/29, amended the scheme in several significant ways for Phase III of its existence (2013–20)Footnote 16 including a shift away from free allocation of EU allowances towards auctioning,Footnote 17 the extension of the scope of the EU ETS to new industries (such as the aluminium industry) and new gases (nitrous oxide and perfluorocarbons),Footnote 18 the extension of the length of validity of allowances to eight years,Footnote 19 and the restriction of the use of certain international offset credits, ie credits obtained by reductions flowing from projects located outside the EU.Footnote 20 Crucially, the system for allocation of allowances to emit greenhouse gases is now centralized at EU level, with a cap on allowances allocated that decreases year-on-year by 1.74 per cent.Footnote 21 The 2009 revision to the ETS Directive followed on from a 2008 Directive by which aviation activities were included within the scheme,Footnote 22 to the consternation of the airline industry, as discussed further below.
At the time, the 2009 revision to the Directive was largely welcomed as a major step towards improving the effectiveness of the EU's carbon market, which had up to that point suffered what many perceived merely to be teething problems, including a persistently low carbon price due in part to over-allocation of allowances by Member States (which, under the original Directive, had been competent for allowance allocation). Yet, since the 2009 Directive's publication, the ETS has continued to be plagued with difficulties, which have lasted into Phase III of the scheme thus far. Foremost among these difficulties has been the continued descent of the EU carbon price, which plummeted to under €3.00 in the early months of 2013, in circumstances where it became evident that, in the context of a serious economic recession, the supply of allowances allocated to installations far exceeded demand. The Commission's effort to restore the credibility of the market by ‘backloading’ the market, such that the sale of 900 million allowances would be delayed until the end of Phase III, was initially rejected by the European Parliament,Footnote 23 but was subsequently accepted subject to amendments, and is currently before the Council. The EU is also currently seeking to limit oversupply of allowances from the use of carbon offsets from the UNFCCC's flexible mechanisms (the clean development mechanism and joint implementation scheme), by placing a cap on the use of such credits in Phase III of the EU ETS.Footnote 24
Such efforts, however, must be viewed in the context of the lengthy list of sectors which are awarded more allowances free of charge pursuant to Article 10a(12) of the ETS Directive, having been deemed to be exposed to significant risk of carbon leakage (ie significant risk to their competitiveness in circumstances where they face competition from industries in third countries not subject to comparable ETS obligations).Footnote 25 Pursuant to Article 10a(6) of the ETS Directive, Member States may also compensate the most electro-intensive industries for increases in electricity costs resulting from the ETS, as long as this is done in a manner compatible with the EU State aid rules.Footnote 26
Aside from the pricing/oversupply issue, the ETS has also suffered from serious difficulties relating to fraud which, while not directly undermining the environmental integrity of the scheme in terms of oversupply of allowances, have raised major question marks against the credibility of the EU's carbon market more generally. In particular, the EU ETS has been used for wide-scale VAT fraud, in the form of bogus ‘carousel’ schemes peaking in 2009 and made possible by the divergent VAT treatment of EU allowances across Member States (estimated to have cost EU governments around €5 billion in total), giving rise to a concerted police response across the EU and internationally involving thousands of officers.Footnote 27 Separately, large volumes of ETS allowances have been stolen from the registry accounts in which they are kept, peaking at the end of 2010 and beginning of 2011, when allowances to a value of over €30 million were stolen. This was done largely by means of cyber hacking of national registries in Austria, Poland, Greece, Estonia and the Czech Republic, forcing the European Commission to suspend carbon trading temporarilyFootnote 28 and leading to damages claims against the EU before the EU courts.Footnote 29
A further development of note in relation to the EU ETS has been the increasing role of the Court of Justice of the European Union (CJEU) in policing the legality of the scheme's regulatory framework. As already reported in the Quarterly,Footnote 30 the first generation of EU ETS cases that found their way before the CJEU comprised Member State challenges to Commission decisions on their national allocation plans proposed for Phases I and II of the EU ETS. While these cases remain interesting in demonstrating how intensively the CJEU was willing to review Commission decisions of an essentially economic nature qua market regulator (answer: rather surprisingly intensively),Footnote 31 they will generally be of less direct significance with regard to the post-Phase II, centralized allocation, regulatory framework.Footnote 32 However, we are already now seeing judgments on the Phase III regulatory framework starting to appear. One of the first of these has been the General Court (GC)'s March 2013 judgment in Poland v Commission, in which Poland sought unsuccessfully to challenge the Commission's decision as to the transitional measures for harmonized free allocation of allowances, taken pursuant to art 10a of the ETS Directive.Footnote 33 In rejecting Poland's arguments that the Commission had not sufficiently taken into account differences between Member States and regions (in particular, Polish dependency on coal) and had gone beyond what was necessary to achieve the directive's aims, the GC distinguished its Phase I and II judgments on the basis that, in these Phases, the margin of discretion left to Member States in transposing the ETS Directive was far greater.Footnote 34
The most notable CJEU judgment on the EU ETS to date, however, is indisputably the ATA judgment,Footnote 35 where a challenge by the Air Transport Association of America and a number of US airlines to the inclusion of third country airlines within the scope of the ETS failed. In a lengthy and complex judgment, the Grand Chamber of the CJEU held that the application of the EU ETS to third country airlines was compatible with international law and, in particular, with the principle of territoriality, given that the scheme only applies to commercial aircraft that arrive at or depart from a Member State airport.Footnote 36 Nor did the fact that the ETS applied to the whole of the aircraft's journey (not just that which occurred over EU territory) affect this conclusion, given the EU's objective under Article 191(2) TFEU of achieving a high level of environmental protection and its status as a party to the UNFCCC.Footnote 37 The CJEU also considered that the extension to third country operators did not infringe the more specific relevant instruments of international law, viz. the Chicago Convention (on the ground that the validity of EU law cannot be reviewed in the light of that Convention)Footnote 38 and the Open Skies Agreement between the US and EU (on the ground that the extension was compatible with the EU's obligation to exempt the fuel load from taxes, fees and charges on fuel).Footnote 39 As Gattini has noted in this Quarterly,Footnote 40 the judgment was highly controversial, and has contributed to a major dispute with the vast majority of members of the International Civil Aviation Organization (ICAO), leading to the EU's April 2013 decision temporarily to suspend the enforcement of third country aircraft operators’ ETS obligations and the requirement to report carbon emissions for flights between EU airports and third countries, pending efforts to agree a deal at international level in the ICAO.Footnote 41 At the time of writing, however, it is far from clear that ICAO efforts to agree on an international market-based mechanism for aviation emissions will succeed.Footnote 42 Separately, European low-cost air carriers have declared their intention to challenge the decision to exempt third country carriers temporarily from the ETS, meaning that this issue is likely once again to end up before the CJEU.Footnote 43
B. Renewable Energy, Energy Efficiency and Energy Taxation
As noted above, the EU's 2009 renewable energy (RES) directive formed a key plank of the 2009 climate and energy package, setting mandatory individual national targets for Member States with the aim of reaching a 20 per cent EU-wide share of energy from renewable sources by 2020 overall, and a mandatory 10 per cent target for each Member State in the transport sector.Footnote 44 This is to be done, inter alia, via the adoption of national renewable energy action plans to cover the period to 2020, which were to be notified to the Commission by June 2010. In contrast to the position in relation to ETS national allocation plans in Phases I/II, however, the Commission was only granted the power to issue a recommendation on foot of an evaluation of national renewable energy action plans—and not the power of approval per se.Footnote 45 The RES directive also contained various innovative methods of encouraging cooperation between Member States in meeting their targets, via statistical transfers of renewable energy between Member States,Footnote 46 joint projects between Member States and between Member States and third countries,Footnote 47 and joint national (financial) support schemes.Footnote 48 These methods must be viewed in the context of the broader efforts to achieve an EU internal market in electricity, in line with the EU's three successive legislative packages to achieve a single market for gas and electricity in the EU.Footnote 49 In its 2011 Communication on ‘Progressing towards the 2020 Target in renewable energy’, the Commission reported that, on the basis of the national renewable energy action plans submitted at that date, the EU should surpass the 20 per cent target of the overall share of renewable energy set by the 2009 climate and energy package by 2020, performing particularly strongly in relation to electricity (renewable energy is predicted to constitute 37 per cent of Europe's electricity mix by 2020).Footnote 50
The extent to which biofuels can be used to satisfy Member States’ renewables targets has been a sensitive topic. Article 17 of the RES Directive established a range of sustainability criteria that must be satisfied in this regard,Footnote 51 including minimum GHG saving thresholds, but did not deal with GHG emissions stemming from indirect changes in land use caused by switching to biofuel production (eg the clearance of land with high carbon content, such as forests, in order to plant biofuel crops). This issue is now the subject of a 2012 Commission Proposal, which seeks to include emissions from indirect land-use change in the reporting requirements in relation to biofuels and, from 2020, to ensure that only biofuels that lead to substantial GHG savings when emissions from indirect land-use change are included, and are not produced from crops used for food and feed, should be subsidized.Footnote 52
Overall, the relationship between national efforts to achieve renewable energy goals, and the EU internal market for electricity, remains at times a tense one, in circumstances where Member States may attempt to give preference to domestically produced renewable energy over energy produced in other Member States. Ultimately, this can lead to a clash between national renewable energy laws and EU internal market law, as illustrated by the pending case on the validity of Belgian renewable energy rules before the CJEU, Essent Belgium.Footnote 53 The May 2013 Opinion of Advocate General Bot concludes that the Belgian rules at issue, whereby only Belgian-produced renewable energy could be taken into account in determining whether Belgian electricity producers had satisfied their renewable obligations, breached EU internal market law. This was so, he reasoned, particularly as the EU internal electricity market has now developed far enough to make it possible to verify whether electricity produced in other Member States comes from renewable sources.Footnote 54 In so holding, the Advocate General observed that what had previously been the leading judgment on the compatibility of national renewable energy legislation with EU internal market rules, PreussenElektra,Footnote 55 was no longer good law given the evolution in the electricity internal market in the interim.Footnote 56
Two months later, Advocate General Jääskinen handed down an important opinion in a further case concerning the renewable energy/internal market interface, Vent de Colère.Footnote 57 This case concerns the question whether French legislation obliging electricity distributors to purchase wind energy at a higher price than the normal market price constitutes State aid within the meaning of Article 107(1) TFEU, where the costs ensuing from this purchase obligation are compensated by a public fund to which electricity producers, suppliers and distributors contribute, and are passed on to consumers via a uniform and generally applicable charge. In finding that the French law constituted State aid, the Advocate General once again distinguished the German feed-in tariff at issue in PreussenElektra, this time on the ground that all French electricity consumers were obliged to pay the charge financing the purchase obligation at issue—irrespective of whether they actually chose to purchase renewable energy.Footnote 58 If the Court follows this Opinion, it would mean that the French wind energy promotion scheme, in operation since 2000, constitutes illegal aid within the meaning of the CJEU's jurisprudence, meaning that it may (depending on the approach taken by the referring Court, the Conseil d’État) need to be repaid along with interest on the amounts due.Footnote 59
The judgments of the Court in Essent Belgium and Vent de Colère will, therefore, be vital in marking the continuing evolution of the renewables/internal market interface in EU law. Despite the strong pressure from the EU to promote national climate and renewable action, it is clear that Member States will have to tread very carefully to ensure they remain within the limits of EU internal market, including State aid, law. A striking illustration of this is the CJEU's judgment in the Dutch nitrous oxide emissions trading case,Footnote 60 where the CJEU overturned the General Court's judgment finding the Dutch nitrous oxide emissions trading scheme, applicable prior to the inclusion of nitrous oxide within the EU ETS, not to constitute State aid. In particular, the CJEU held that, as only the largest polluters came within the scope of the scheme, the fact that they had been assigned tradable emissions rights free of charge for the purpose of participating in the scheme constituted an advantage for these polluters which had not been awarded to smaller polluters, and such advantage amounted to State aid within the meaning of Article 107(1) TFEU. The judgment means that it will be almost impossible for a Member State to design a workable national emissions trading scheme on the basis of (initial) free allocation of allowances, and this despite the fact that the Dutch scheme was aimed at implementing an EU Directive setting a cap on national nitrous oxide emissions.Footnote 61
Aside from these important CJEU developments, the Commission, which is tasked with taking the initial decision on whether a national measure is compatible with EU State aid law, is currently consulting on the revision of its Guidelines on the application of the EU State aid rules to national measures promoting environmental protection. The last version of these Guidelines appeared in 2008, and announced how the Commission would approach a wide variety of national environmental protection measures, including measures promoting climate action and renewable energy.Footnote 62
Further important elements of the EU's drive to achieve the 20-20-20 targets have been its 2011 Energy Efficiency PlanFootnote 63 and the 2012 Energy Efficiency Directive,Footnote 64 although these are not formally part of the 2009 Climate and Energy Package discussed above. While the Energy Efficiency Directive does not itself include specific national binding targets for energy efficiency improvement, it obliges Member States to set ‘indicative’ national targets taking into account, inter alia, the EU's target of improving efficiency by 20 per cent by 2020.Footnote 65 It also obliges Member States to draw up a national long-term strategy for renovating buildings to improve energy efficiency, and requires Member States to ensure that, from 1 January 2014, 3 per cent of public bodies’ buildings is renovated annually to meet the minimum energy performance requirements set out in the EU's 2010 Directive on the energy performance of buildings.Footnote 66 In a further confirmation of the central role that the EU sees for market-based environmental policy instruments in Europe, the Directive contains an innovative provision obliging Member States to create national energy efficiency obligation schemes, but expressly allowing them to employ a variety of market-based measures (such as transferable certified energy savings, energy and carbon taxes, and voluntary environmental agreements) in implementation of, or as an alternative to, such schemes.Footnote 67 However, in spite of this support for national energy taxes, the EU continues to have difficulty in progressing proposals in relation to a harmonized EU-level energy tax, due to the need for unanimity within the Council in order for such a measure to pass. Following an unsuccessful 1992 Commission proposal on the matter,Footnote 68 and a 2003 Directive leaving much leeway to Member States in the field,Footnote 69 the Commission's newest (2011) ProposalFootnote 70 is currently stalled in the Council.Footnote 71
C. Other EU Climate Initiatives
A variety of other important developments in EU climate law have taken place in the past three years. In April 2013, the Commission adopted the EU's first strategy on adaptation to climate change, which recognizes that the primary locus for action in relation to adaptation will generally be Member States, with the exception of a number of climate-vulnerable sectors of EU competence, namely agriculture, fisheries and cohesion policy.Footnote 72 The strategy encourages all Member States to draw up adaptation strategies (at the time of its publication, only 15 had such strategies) and strengthens the availability of information on national adaptation regulation via the EU's adaptation platform, Climate-ADAPT. Separately, the EU has also strengthened its legal framework for monitoring GHG emissions, via the adoption of a new 2013 Monitoring Mechanism Regulation aimed at improving the quality of data reported via the UNFCCC process, as well as extending the scope of reporting obligations (for instance, to encompass national use of revenues from EU ETS auctioning).Footnote 73 Further, Member States are, from 2013, for the first time obliged to report GHG emissions and removals resulting from land use, land-use change and forestry (LULUCF), in implementation of a decision taken at COP-17 of the UNFCCC at Durban.Footnote 74 The Commission has also proposed that, for the first time, the maritime transport sector (in particular, large vessels) should be subject to GHG emissions reporting obligations.Footnote 75
A final development of note is the Commission's 2013 Consultative Communication on carbon capture and storage (CCS).Footnote 76 Despite the fact that the EU has been first mover internationally in promulgating CCS legislation with the aim of promoting the use of CCS technology as a potentially important limb of the EU's climate policy,Footnote 77 these efforts have thus far fallen rather flat. Not a single CCS project was funded under the first round of the EU's low-carbon funding facility NER300 in 2012, which is financed by funds generated by sales of EU ETS allowances, and under which €1.5 billion was available in total.Footnote 78 Only one CCS project has been put forward under the second round of NER300 funding, the results of which are due to be announced in 2014.Footnote 79 The 2013 Communication seeks to examine possible reasons for the failure of the EU's CCS strategy to date, with a view to strengthening the role of CCS in the EU's 2030 climate framework.
IV. GOVERNANCE AND ENFORCEMENT
Aside from the tremendous activity in the climate and energy field, a further major theme within EU environmental law and policy in recent years has been the need to improve governance and enforcement. This has focused on efforts to improve the rather poor record of under-enforcement of EU environmental law, and the associated lack of practical effectiveness of many of the EU's environmental policies,Footnote 80 and efforts to improve environmental governance by bringing the EU's laws, and those of its Member States, into line with the 1998 Aarhus Convention.Footnote 81
As flagged above, tackling the persistent under-enforcement of many areas of the EU's environmental laws forms one of the key cross-cutting areas of priority action identified in the EU's new EAP, aimed at guiding the EU's environmental policy activities up to 2020. In the run-up to the negotiation of the EAP, the Commission released a number of soft-law documents aimed at examining this issue, culminating in a 2012 Communication entitled ‘Improving the delivery of benefits from EU environment measures’,Footnote 82 in which the Commission specifies the principal ways in which it intends to deal with the under-enforcement issue in the years to come.
To begin, this includes improving knowledge of what is going on ‘on the ground’, by putting more effective information systems in place at EU and national levels, via inter alia improving the Access to Environmental Information Directive and increasing the use of earth observation techniques.Footnote 83 A further focus for the Commission is improving national inspections and surveillance carried out of enforcement of EU environmental law. Traditionally, inspections have remained within the competence of Member States, subject to a 2001 Recommendation establishing minimum inspection criteria, ie a non-binding measure.Footnote 84 This is due to the long-held resistance of (certain) Member States to the idea of an EU-level inspection capacity, as witnessed by the controversy that arose around the issue at the time of creation of the European Environment Agency in 1992.Footnote 85 In part, this is linked to subsidiarity concerns, and a dislike of the notion of an EU environmental ‘police’ arriving on a Member State's territory in a manner similar, for instance, to the practice in competition law. However, exceptionally, harmonized binding inspection requirements have been included in specific sectoral pieces of legislation. An important recent example is that of the 2010 Industrial Emissions Directive, which replaced the Integrated Pollution Prevention and Control Directive as the EU's primary legislative scheme covering large industrial polluters.Footnote 86 The 2012 Communication reopens this sensitive issue, stating the Commission's aim of ‘assessing options for complementing national inspections and surveillance in a targeted way at EU level’, including potentially by creating an ‘EU-level inspection and surveillance capacity’ or extending to the Commission a ‘limited inspection role’ while respecting national administrative autonomy.Footnote 87 While the Seventh EAP does not go this far, it does envisage greater use of binding inspection requirements, moving beyond the 2001 Recommendation's purely soft-law approach. This is to be welcomed as a chance to move beyond the considerable variations in inspection levels and approaches across Member States to date (despite the existence of networks of national inspectors, which help in exchanging best practice).Footnote 88
A further issue targeted by the Commission is the mechanism used by Member States for handling complaints made at national level. At EU level, large changes have occurred in recent years in complaint handling via the institution of the EU Pilot scheme, which has been in operation since 2008 (and is not confined to environmental law).Footnote 89 Essentially, the idea of the Pilot scheme is, once a complaint at EU level has been registered, it is transferred to the relevant Member State for their input—whether in the form of clarification, information or potential solutions to the problem. The Member State may communicate directly with the complainant to this end. In the absence of (what the Commission deems to be) a satisfactory solution, the Commission retains the power to commence infringement proceedings in the normal fashion. The 2012 Communication reaffirms the Commission's intentions to further ‘delegate’ complaint-handling responsibilities to national authorities in this manner, especially in those fields of environmental enforcement which are not of strategic importance to the Commission.Footnote 90
While efforts to encourage Member States to be more responsive are in principle positive developments, it is vital that the Commission retains a real, effective oversight of Member States’ responses across the Pilot scheme—particularly in the environmental policy area, where the number of complaints remains relatively high compared to other areas.Footnote 91 Clearly, passing on a complaint to the very national authorities who have failed to come up with the goods in the first place may raise serious concerns in terms of independence of analysis, transparency and fullness of response. Combined with the Commission's decision to prioritize only certain types of complaints in environmental enforcement, this could result in a real threat to the rule of law in environmental matters in the EU.Footnote 92
Linked to this initiative to increase Member States’ role in dealing with complaints is the Commission's idea of creating what it calls ‘partnership implementation agreements’ with Member States, the aim of which would be delivering ‘improved environmental outcomes’.Footnote 93 These agreements, in the Commission's vision, would commit Member States to preventative or remedial action, direct EU assistance to ‘improved implementation structures’ at national level and ‘endorse, on a case-by-case basis, Member States remedial plans to resolve specific problems’ through work programmes.Footnote 94 The concept of implementation agreements has been emphasized by Commissioner Potočnik as a solution to the under-enforcement issue,Footnote 95 and are also included in the EU's Seventh EAP. Yet the precise legal implications and form of such agreements are, to say the least, ambiguous, and raise a variety of important questions. For instance: which EU institution will be empowered to enter into such agreements? If this is to be the Commission (as might appear natural, given its role as guardian of the Treaties), will other institutions, such as the European Parliament, have a role in designing the content of, and overseeing, such agreements? Perhaps even more crucially, what legal force will such agreements have? In particular, if the EU agrees to specific remedial work programmes for individual enforcement issues, will it be estopped or restricted from pursuing such Member States via the normal infringement process? Even if not, will such agreements simply lead to further delays in practice before the commencement of infringement actions? Such issues, which have not been (publicly) broached by the Commission to date, go to the core of any assessment of this proposal.
A final major issue on the Commission's enforcement agenda at present is improving access to justice in environmental matters across the EU. This resonates with one of the three pillars of the UN Economic Commission for Europe's 1998 Aarhus Convention, which has over the years, and in conjunction with the activity of its Compliance Committee, established itself as a vital instrument of environmental governance within Europe. Along with obligations in relation to access to environmental information and participation in environmental matters, the Aarhus Convention contains a number of provisions obliging contracting States to ensure adequate access to justice in environmental cases, whether in the context of appeals of refusal of access to environmental information (Article 9(1)), public participation requirements (Article 9(2)), and more generally as regards national law ‘relating to the environment’ (Article 9(3)). Such access must provide ‘adequate and effective remedies’ and be ‘fair, equitable, timely and not prohibitively expensive’ (Article 9(4)) and the public must be informed of the applicable national rules on access to justice (Article 9(5)).
All EU Member States have now ratified the Aarhus Convention,Footnote 96 and the EU has also ratified the Convention in its own right. As a result, it is no surprise that access to justice is one of the focus areas in terms of enforcement for the Commission and the EU, as emphasized in the 2012 CommunicationFootnote 97 and in the Seventh EAP. However, unlike access to information and public participation (where specific harmonizing legislation was passed at EU level back in 2003)Footnote 98 a 2003 proposal to harmonize national access to justice provisions in environmental matters stalled in the CouncilFootnote 99 in the face of national sensitivities about EU incursion into what is still largely a Member State competence, ie national remedies and procedure.
Nonetheless, the issue has recently been revived, prompted by a number of far-reaching judgments from the CJEU which go some way to fill the gap left by the lack of express harmonizing legislation in the field, and some of the most significant of which have been delivered in the past few years. One of the most important to date has been the 2011 Slovak Brown Bear judgment,Footnote 100 which concerned the entitlement of a Slovakian environmental association to challenge a ministerial derogation, made for hunting purposes, from the species protection provisions of the Habitats Directive. While the Grand Chamber declined to find Article 9(3) of the Aarhus Convention to be directly effective, it held that, despite the fact that the Habitats Directive does not include any access to justice provisions, it was incumbent on Member States to ensure that the rights provided therein are ‘effectively protected in each case’.Footnote 101 In practical terms, this meant that the national court had a duty to interpret national law ‘in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention’ and the objective of effective judicial protection of the relevant EU law rights ‘so as to enable’ an environmental association such as that at issue to challenge the disputed measure.Footnote 102 This strong version of the duty of consistent interpretation effectively obliges national courts, therefore, to achieve via interpretative means the aims of Article 9(3) of the Aarhus Convention in the absence of applicable EU legislation on access to justice, unless this would require a contra legem interpretation of national law.
This judgment has been complemented by a number of other judgments giving a robust interpretation of those few individual EU measures—namely, the IPPC Directive and Environmental Impact Assessment (EIA) Directive—which do include express access to justice provisions. This has included conditions of access to justice relating to standing,Footnote 103 costs of legal proceedings,Footnote 104 level of competent tribunal,Footnote 105 availability of compensatory damages,Footnote 106 and the scope of application of these access to justice provisions.Footnote 107 Particularly notable in this regard is the Fourth Chamber's 2013 judgment in Edwards, concerning the meaning of the obligation to ensure that judicial proceedings should not be ‘prohibitively expensive’ under the IPPC and EIA Directives.Footnote 108 In clarifying that these provisions meant that persons covered by the access to justice provisions ‘should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result’,Footnote 109 the CJEU indicated that, in assessing whether this threshold was met, both subjective factors (ie the particular claimant's financial position) and objective factors (eg the complexity of the case, the importance of the case, etc) were relevant.Footnote 110 A number of important additional cases on related issues are currently pending before the CJEU.Footnote 111
In the light of, inter alia, these significant developments in the case law, the Commission, Council and European Parliament have revived the access to environmental justice debate at political level.Footnote 112 In 2013, a public consultation on the issue was opened by the Commission, on the topic of whether the EU's access to justice obligations should best be dealt with by publicizing and clarifying the CJEU's case law, or alternatively by promulgating an access to justice directive at EU level.Footnote 113
Alongside these developments, which concern conditions of access to justice for review of national decisions, the debate on whether the existing access to justice provisions for review of EU decisions continues to rage. Following the 2011 Findings of the Aarhus Convention Compliance Committee that the EU's access to justice provisions, including the highly restrictive locus standi test in Article 263 TFEU actions before the CJEU, would not, if the CJEU's jurisprudence remained the same, be compatible with the Convention,Footnote 114 the General Court ruled in its 2012 judgment in Stichting Natuur en Milieu that the Commission had been wrong to refuse a request for internal review, pursuant to the 2006 Regulation implementing the Aarhus Convention access to justice provisions in relation to EU decisions,Footnote 115 on the basis that such review only applied to measures of individual scope.Footnote 116 The Commission has, however, appealed the matter to the CJEU.Footnote 117
V. INTEGRATION
A final issue deserving mention is the state of play in relation to the obligation to integrate environmental concerns with the EU's other policy areas, as is required by Article 11 TFEU. It is certainly the case that much integration has taken place over the past years of non-environmental concerns, particularly economic concerns, into the EU's environmental policy. As mentioned above, economic instruments have become de rigueur in a large portion of the EU's environmental policies,Footnote 118 in what Commissioner Potočnik has hailed as the ‘new environmentalism’—meaning, in his vision, achieving environmental protection while not placing limits on economic prosperity.Footnote 119 In fields as diverse as habitats protection to enforcement, the need for increased EU activity is argued for on the basis of the economic benefits that such activity can bring, quantified in cash terms, with the intrinsic environmental value of the action typically relegated to a secondary line of argument.Footnote 120 Yet, unfortunately, there is little evidence to date that the integration imperative has worked as effectively in the other direction. While we see continued definite efforts on the part of the CJEU to interpret EU economic law in a manner consistent with the EU's environmental aims,Footnote 121 the same level of integration is far from evident on the part of the other institutions, even in fields where the environmental implications of the policy at issue are glaring. Perhaps the most obvious recent example is the June 2013 political agreement on reform of the EU's Common Agricultural Policy,Footnote 122 in which the pro-environment features of the Commission's proposals were watered down considerably,Footnote 123 leading to heavy criticism from environmental groups.
VI. CONCLUSIONS: GOOD MARKS FOR EFFORT, BUT …
It will be clear from this (necessarily selective) account that the level of activity and development in EU environmental law in the past few years has been remarkable. Of particular interest, from an institutional perspective, has been the continued strong role played by the EU Courts in promoting the EU's environmental objectives by striving to interpret applicable EU and international law, where possible, in a notably ‘green’ manner. Yet, despite these laudable levels of activity, the practical results of the now large volume of EU environmental law remain, in many respects, rather underwhelming. As the European Environment Agency's latest multi-annual Report on the state of the European environment demonstrates, in the ten years between 2000 and 2010, the EU was meeting its environmental targets in only three of the 16 discrete environmental policy areas identified by the Report (namely, the objectives in relation to reduction of greenhouse gas emissions, recycling of waste, and water pollution).Footnote 124 Clearly, therefore, the disconnect between the (large body of) laws on the EU's statute books, and the practical reality of the EU's environmental quality on the ground, is considerable. In this sense, the issue of enforcement and implementation of the EU's environmental laws, highlighted above, represents perhaps the greatest challenge to the effectiveness of EU environmental policy over the coming years.
