legal tools in environmental campaigning 10 july 2013, Šolta island, croatia

Legal Tools in Environmental Campaigning

10 July 2013, Šolta island, Croatia

EU acquis and non-member states

Legal basis for applying EU law in non EU states:

International agreements signed between the EU and those states:

- SAA - candidate countries - potential candidate countiries

- Energy Community Treaty


The Vienna Convention on the Law of Treaties makes international agreemennts, like SAA's and ECT, obligatory for its signatories (non-EU members)

- treaties concluded between states

- does not cover agreements between states and international organizations

- does not cover agreements between international organizations themselves

- BUT: in treaties between states and international organizations, the terms of the Convention still apply between the state members

The Vienna Convention on the Law of Treaties

Preamble VCLT: Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized

Article 26 VCLT (Pacta Sunt Servanda clause):Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27 VCLT:A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.


Stabilization and Asocciation Agreements

- Each organization should check for its own state

- In general these are the instruments of EU „foreign” policy, i. e. ENP (European Neighbourhood Policy)

- They are signed in exchange for commitments to political, economic, trade, or human rights reform in that country which is then given financial/technical assistance

- In the 90's signed with the SEE countries, now focus on Western Balkans


The Energy Community Treaty is an international organisation dealing with energy policy with the following parties to the Treaty:the EU (16 Participants, i. e. interested EU member states),the Republic of Albania, Bosnia and Herzegovina, Kosovo,the Republic of Macedonia, the Republic of Moldova, the Republic of Montenegro, the Republic of Serbia,the Republic of Ukraine


- Signed on 25 Oct 2005 in Athens

- Entered into force on 1 July 2006

- The objective is to create a stable regulatory and market framework

- Tasks and obligation under the ECT:

1. Extension of the acquis

2. Mechanism for operation of Network Energy Markets

3. Creation of a Single Energy Market


Provisions of the Energy Community Treaty that make parts of the EU acquis applicable to non EU states:

- Article 10 & 11- acquis on Energy

- Article 12 – 17- acquis on Environment

- Article 18 &19- acquis on Competition

- Article 20- acquis on Renewables

- Article 21 – 23- Generally Applicable Standards

- Article 94 – Court of Justice of the EU (ECJ and CFI)


Article 94 ECT:

The institutions shall interpret any term or other concept used in this Treaty that is derived from European Community law in conformity with the case law of the Court of Justice or the Court of First Instance of the European Communities.


Article 13

The Parties recognise the importance of the Kyoto Protocol. Each Contracting Party shall endeavour to accede to it.

Article 14

The Parties recognise the importance of the rules set out in Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control. Each Contracting Party shall endeavour to implement that Directive.

Article 15

After the entry into force of this Treaty, the construction and operation of new generating plants shall comply with the acquis communautaire on environment.

greenhouse gas emissions and targets of the EU

The „EU-15”: reducing emissions of a basket of six greenhouse gases in the 2008-2012 period to 8% below the 1990 level.

Countries joined the EU since the Kyoto Protocol was agreed have individual emission reduction commitments.

Hungary and Poland have commitments to reduce emissions of the basket of six gases by 6% in the 2008-2012 period compared to their base year or period.

The other eight Member States have commitments to reduce by 8% against various base years.

Croatia has an emission reduction target of 5% compared to 1990 levels.

For 2020, the EU has made a unilateral commitment to reduce overall greenhouse gas emissions from its 27 Member States by 20% compared to 1990 levels.

To reach the 20% reduction target, emission cuts will be needed not only in sectors covered by the EU Emissions Trading System (EU ETS) but also in the areas of the economy that are outside the EU ETS, such as buildings, agriculture, waste management and transport (except aviation).

Long term objective: reducing greenhouse gas emissions by 80-95 percent by 2050 (Roadmap for moving to a low-carbon economy in 2050)

Drastic reduction in carbon emissions from coal-fired power stations, through clean technologies like carbon capture and storage (CCS).


Article 16

The “acquis communautaire on environment”:

(i) EIA Directive (on the entry into force of ECT)

(ii) Reduction in the Sulphur Content of Certain Liquid Fuels Directive (1999/32/EC, 93/12/EEC) (by 31 December 2011)

(iii) LCP Directive (2001/80/EC) (by 31 December 2017)

(iv) Article 4(2) of Wild Birds Directive (79/409/EEC) (on the entry into force of ECT)


Article 4(2) Wild Birds Directive:

Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.

Instruments available only to EU member states

Other EU legal instruments:

- Actions for failure to fulfil obligationsCourt of Justice determines whether a MS has fulfilled

its obligations under EU law; Preliminary procedure- an opportunity for MS to reply to the complaints addressed to it;

Action for Infringement of EU law befor the Court of Justice- by the Commission or by another MS;If non-compliant: end of failure to comply without delay

or threat of fixed or periodic fines (penalty)

Instruments available only to EU member states

Other EU legal instruments:

- Reference for a Preliminary RulingClarification of the point concerning the

interpretation ofEU law, orReview of the validity of an Act of EU law;Reffered to the Court by a national court

BUTall the parties to the proceedings before the

national court, the MS and EU Institutions may take

part in the proceedings before the ECJ;ECJ judgements bind other national courts

before which the same question arises (precedent like)

(Article 94 ECT)

DIRECTIVE 2011/92/EUon the assessment of the effects of certain

public and private projects on the environment

Article 1(1):This Directive shall apply to the assessment of

the envi ronmental effects of those public and private projects which are likely to have significant effects on the environment.

Annex I projects

Annex II projects:- case by case (taking into account Annex

III)- according to treshold criteria set by MS

DIRECTIVE 2011/92/EUC-420/11, Leth, paragraph 28It follows from Article 1(1) of, and from the first,

third, fifth and sixth recitals in the preamble to, Directive 85/337 that the purpose of that directive is an assessment of the effects of public and private projects on the environment in order to attain one of the Community’s objectives in the sphere of the protection of the environment and the quality of life.

C-72/95; C 435/97; C-2/07, C-275/09:The wording of the EIA Directive indicates that it

has a wide scope and a broad purpose.C-275/09:A purposive interpretation of the directive

cannot, in any event, disregard the clearly expressed intention of the legislature of the European Union.

The development of EU environmental law

I phase (58-72): Measures with a view oof attainment of Common market

II phase (72 – 87 [SEA]): „improvement in the quality of life and the protection of the environment” (Declaration of the Council); 'harmonius development of economic activities' & 'continuous and balanced expansion', Articles 100 and 235 EEC

III phase (87 - 93): the objectives of the environment policy were, for the first time, enshrined in the Treaty = specific powers aimed at the protection of the environment

The development of EU environmental lawIV phase (93 – 97): For the first time the term

'environment' was reffered to in the key Articles (A. 2 & A. 3) of the Treaty; however: „sustainable and non-inflationary growth respecting the environment”; QMV; EAP (co-decision procedure)

V phase (97 -09): „harmonius, balanced and sustainable development of economic activities” (A. 2); a task to promote 'a high level of protection and improvement of the quality of the environment'; integration principle; co-decision standard procedure for environmetnal legislation

VI phase: EU „shall work for the sustainable development of Europe” (A. 3 TEU)- makes sustainable development cross-cutting, horizontal objective; global perspective; three integration principles (A. 11, 13, 194(2) TFEU)

DIRECTIVE 2011/92/EU

Article 2(1): Member States shall adopt all measures

necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Those projects are defined in Article 4.

Link between Articles 2(1) and Article 3 Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the EIA Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. (C-392/96, Commission v. Ireland, paragraph 66)


Article 3 EIAThe environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors: (a) human beings, fauna and flora; (b) soil, water, air, climate and the landscape;

(c) material assets and the cultural heritage; (d) the interaction between the factors referred to in points (a), (b), and (c).

DIRECTIVE 2011/92/EUIn order to satisfy the obligation imposed on it by

Article 3, the competent environmental authority may not confine itself to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in an appropriate manner, in the light of each individual case.

C-50/09, Commission v. Ireland, paragraphs 35, 37-41:Assessment, which must be carried out before the decision-making process, involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data.


C-420/11, Leth, paragraph 46:Directive 85/337 prescribes an assessment of

the environmental impact of a public or private project, but does not lay down the substantive rules in relation to the balancing of the environmental effects with other factors or prohibit the completion of projects which are liable to have negative effects on the environment.

Climate change in permitting procedures

Directive of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (EIA Directive)

environmental impact assessments shall identify, describe and assess in an appropriate manner direct and indirect effects on climate

Directive of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programs on the environment (SEA Directive)

some reference to climate change, which is far from being proportionate to the gravity of the problem


Article 4Projects subject to assessment

Article 5Minimum information to be provided (Annex IV)Article 5(2) Scoping procedure

Article 6Public participation provisions

Article 7 Transboundary Impact


Article 8Taking into account the results of the consultation process (difference to Article 3)

Article 9Publication of the decision taken and the reasons thereofMeasures (to be implemented in the permitts)

Article 10Higher standards

Article 11 A2J

DIRECTIVE 2011/92/EUC-263/08, Djurgården, paragraphs 32-39:

The right of access to a review procedure within the meaning of Article 10a of Directive 85/337 does not depend on whether the authority which adopted the decision or act at issue is an administrative body or a court of law. Second, participation in an environmental decision-making procedure under the conditions laid down in Articles 2(2) and 6(4) of Directive 85/337 is separate and has a different purpose from a legal review, since the latter may, where appropriate, be directed at a decision adopted at the end of that procedure. Therefore, participation in the decision-making procedure has no effect on the conditions for access to the review procedure.

Thermal Power Plant Plomin (Plomin C), Croatia

Thermal Power Plant Plomin (Plomin C), Croatia 125 MW Unit I TPP owned and operated by HEP

which is planned to be discontinued after the construction of the 500 MW Plomin C unit

within a radius of 20 km around Plomin TPP there are two internationally relevant bird habitats and eight special areas of conservation for other wild species and habitat types

the annual greenhouse gas emissions from the Plomin 'C' Unit will amount to 2 644 068 t CO2eq

Plomin 'C' would account for a minimum of 40 percent of Croatia's total emissions- thus limiting policy choices extremely severely in other sectors and energy sub-sectors

the competent authority refused to take into account the impact of CO2 emissions on climate change

Thank you for your attention!

Enes ĆERIMAGIĆ[email protected]+385 99 31 49 625

legal tools in environmental campaigning 10 july 2013, Šolta island, croatia

Documents

eu states

eu acquis applicable

eu law

cfieu acquis

energy article

croatiaeu acquis

republic of ukraineeu

eu member states