Legal instruments of secondary environmental legislation

1
Legal instruments of secondary environmental
legislation administrative instruments

• Prof. Gyula Bándi

2
Administrative procedures and instrumentsNotific
ation

• Seveso II. directive (Council Directive 96/82/EC)
  the notification shall contain the following
  details
• 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
  details
• 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
  conditions
• 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
  procedure.
• 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.

3

• 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.

4
Registration

• 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
  waste.

5

• Case C-354/99, Commission vs. Ireland on animal
  experiments
• 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.

6
Classification

• 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
  obligations
• Case C-67/99, Commission vs. Ireland Natura
  2000
• Tthe Court stated that designation
  classification - of a SAC territory has four
  steps, namely
• the Member State proposes the designation of the
  territory,
• the Commission prepares a draft list,
• the Commission subsequently accepts the proposal
  in accordance with a specified procedure,
• the Member State designates the territory.

7

• 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
  conditions
• - 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.

8

• 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
  bay.
• 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.

9
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

10

• 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.

11

• 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.

12

• 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
  Directive.
• 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
  concerned.

13

• 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
  Directive.
• 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
  prohibition.
• 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.

14
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.

15

• 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).

16
Prohibition and obligation

• Case C-98/03, Commission vs. Federal Republic of
  Germany
• 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
  affected.
• 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.

17
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
  manner
• 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
  authorities.
• 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.

18
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
  protection.
• 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.

19
EMAS

• REGULATION (EC) No 1221/2009 OF THE EUROPEAN
  PARLIAMENT AND OF THE COUNCIL of 25 November 2009
  on the voluntary participation by organisations
  in a Community eco-management and audit scheme
  (EMAS)
• (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
  Community.
• 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.

20
Economic instruments

• Case C-213/96, preliminary ruling - Outokumpu Oy
  case
• 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.

21

• 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
  directive.
• 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
  proceedings,
• 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

22

• 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
  premises.
• 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.