Enforcement of European Union Environmental Law: Legal Issues and Challenges

Description

Offering a detailed account of the various legal arrangements at European Union level, this book is an ideal reference tool for practitioners and legal scholars. As well as examining the principal sources of EU environmental law enforcement, it also contributes to the legal and political debates that surround the subject. Spanning three parts, the author examines the practical impact of the legal arrangements at Union level that are used to uphold EU environmental norms. Offering a comprehensive account of the current state of EU environmental law enforcement and the developments affecting it, Martin Hedemann-Robinson explores the role of the European Commission, the possibilities for private law enforcement, and the responsibilities of member state national authorities. Key legal developments that have occurred since the first edition have been incorporated, including new statutory developments and case law. Particular attention is paid to the impact of the 2007 Lisbon Treaty on foundational EU treaty provisions enabling the European Commission to take legal action against EU member states infringing Union environmental law, the establishment of a new legal architecture at Union level on the topic of environmental criminal policy, as well as increased EU legislative intervention in the area of environmental inspections. The impact of the 1998 Århus Convention on EU environmental law enforcement is also addressed in detail, including the influence of recommendations of the Århus Convention’s Compliance Committee. Cover Title Copyright Dedication Contents Preface Table of cases Table of treaties and environmental legislation Table of abbreviations 1 Introduction 1.1 Legal architecture and terminology of the EU: a brief overview 1.1.1 Overview of the Union’s constitutional development 1.2 The EU’s institutional framework 1.3 EU environmental policy and law 1.3.1 Legal basis for the adoption of EU environmental measures 1.3.2 Types of EU environmental legislative measures PART I The role of the European Commission in enforcing EU environmental law 2 EU institutional enforcement of EU environmental law: the general legal framework 2.1 The role of the European Commission as primary law enforcer 2.2 Types of breaches of EU environmental law 2.2.1 Non-transposition cases 2.2.2 ‘Bad-application’ cases 2.3 Enforcement proceedings brought by the European Commission: Articles 258 and 260(2) TFEU 2.3.1 Structure and format of Article 258 TFEU proceedings 2.3.2 Structure and format of Article 260(2) TFEU second-round proceedings 2.4 Enforcement proceedings brought by a Member State: Article 259 TFEU 2.5 The European Atomic Energy Community Treaty and infringement proceedings 3 Enforcement action brought by the European Commission (1): Article 258 TFEU and ‘first-round’ infringement proceedings 3.1 Detection of breaches of law 3.2 Overview of core elements of Commission infringement proceedings 3.2.1 General remarks regarding first-round proceedings under Article 258 TFEU 3.2.2 General remarks regarding second-round proceedings under Article 260(2) TFEU 3.2.3 Tables highlighting procedure and typical length of Article 258 TFEU infringement actions 3.3 The pre-litigation phase in Article 258 TFEU infringement proceedings 3.3.1 Evidence and onus of proof 3.3.2 Investigations and the role of Article 4(3) TEU: duty of co-operation 3.3.3 European Commission discretion in deciding to take legal action 3.3.4 Letter of Formal Notice (LFN): the first written warning 3.3.5 Reasoned Opinion (RO): the second written warning 3.4 The litigation phase: application to the CJEU 3.4.1 Contents of the Court application 3.4.2 Temporal aspects of the litigation phase 3.5 Common defence submissions in environmental infringement proceedings 3.5.1 Internal problems facing an EU member state 3.5.2 The element of fault on the part of the defendant member state 3.5.3 Breach by another member state 3.5.4 De minimis-type arguments 3.5.5 Adequacy of implementation of EU environmental law 3.5.6 Temporal arguments 3.6 Interim relief and Article 258 TFEU proceedings 3.6.1 Legal and institutional framework for securing interim measures 3.6.2 Interim measures and environmental casework 4 Enforcement action brought by the European Commission (2): Article 260 TFEU and ‘second-round’ infringement proceedings 4.1 Introduction 4.1.1 Duration of second-round infringement procedure 4.2 General legal framework of the second-round infringement action (Article 260 TFEU) 4.2.1 Article 260(1) TFEU 4.2.2 Article 260(2) TFEU 4.3 Financial penalties under Article 260(2) TFEU 4.3.1 European Commission policy on financial penalties under Article 260(2) TFEU 4.3.2 The CJEU’s principles relating to financial sanctions under Article 260(2) TFEU 4.4 Some concluding remarks on the second-round infringement procedure 5 Enforcement action brought by the European Commission (3): some critical reflections 5.1 Investigation and detection of infringements 5.1.1 Investigatory and inspection tools 5.1.2 Resources issues 5.1.3 Complainants as sources of information on environmental law enforcement 5.2 Limitations of legal structures underpinning Articles 258 and 260 TFEU 5.2.1 Temporal aspects 5.2.2 Legal sanctions 5.3 The European Commission and conflicts of interest 5.3.1 College of Commissioners 5.3.2 The level of Directorate General 5.4 Prioritisation of cases and reform of the monitoring process 5.4.1 Commission responses to the issue of casework prioritisation 5.5 Accountability and infringement proceedings 5.6 Statistical information on EU environmental infringement cases 5.6.1 European Commission annual reports on monitoring the application of EU law 5.6.2 European Commission annual surveys and other annual publications on the implementation and enforcement of EU environmental law 5.6.3 Statistical tables on EU environmental complaints and infringement cases 5.7 Some brief concluding remarks PART II The role of private persons in enforcing EU environmental law Section 1 Taking action at national level 6 Enforcement of EU environmental law at national level by private persons: general legal principles 6.1 Direct effect and EU environmental law 6.1.1 General introduction 6.1.2 Criteria for direct effect and EU environmental directives 6.1.3 Applying direct effect of directives against public authorities 6.1.4 Reliance upon directives against private persons 6.2 Indirect effect and EU environmental law 6.2.1 General points 6.2.2 Indirect effect and liability under criminal or administrative law 6.3 Concluding remarks 7 Access to justice at national level for breaches of EU environmental law (1): the role of the Court of Justice of the EU 7.1 General principle of procedural autonomy under EU law 7.2 Remedies at national level: general principles developed by the CJEU 7.2.1 Duties on national courts to provide remedies 7.2.2 Duties of non-judicial national authorities to provide adequate remedies 7.3 State liability for breaches of EU environmental law 7.3.1 General legal criteria for proving state liability under EU law 7.3.2 State liability and EU environmental law 7.4 Some concluding remarks 8 Access to justice at national level for breaches of EU environmental law (2): EU legislation on access to legal review at national level 8.1 The 1998 Århus Convention and its impact on the EU legal order 8.1.1 Overview of Århus 8.1.2 Legal impact of Århus for the European Union 8.2 EU legislative implementation of the Århus Convention’s obligations on access to environmental justice 8.2.1 Access to justice regarding the first pillar of Århus (environmental information) 8.2.2 Access to justice regarding the second pillar of Århus (public participation in environmental decision-making) 8.2.3 Access to justice regarding the third pillar: environmental law enforcement 8.3 Possibilities for a general EU directive on access to justice in environmental matters at national level 8.3.1 The Seventh EU Environmental Action Programme (EAP7) and access to environmental justice at national level 8.3.2 The 2003 Draft Access to Justice in Environmental Matters (AJEM) Directive 8.4 Some concluding remarks Section 2 Taking action at EU level 9 Private enforcement of EU environmental law at EU institutional level (1): access to justice 9.1 Access to environmental justice under the EU treaty system 9.1.1 Article 263 TFEU – annulment proceedings 9.1.2 Article 267 TFEU – the preliminary ruling procedure 9.1.3 Article 265 TFEU – legal proceedings in respect of a failure to act 9.1.4 Articles 268 and 340(2) TFEU – non-contractual liability 9.2 The Århus Regulation 1367/06 and access to environmental justice at EU level 9.2.1 Material and personal scope of the Århus Regulation’s access to justice provisions 9.2.2 Review procedures under the Århus Regulation’s access-to justice provisions 9.2.3 EU case law on the Århus Regulation’s impact on judicial review 9.3 Internal review under the Ship Recycling Regulation 1257/13 9.4 Some brief reflections on the impact of the EU’s access to environmental justice framework in relation to EU institutional conduct 10 Private enforcement of EU environmental law at EU institutional level (2): administrative complaints procedures and other possibilities 10.1 The European Ombudsman (EO) 10.1.1 General remit and powers of the EO 10.1.2 Environmental maladministration complaints 10.2 The European Parliament (EP) 10.2.1 Right of petition to the EP 10.2.2 Parliamentary questions 10.2.3 EP temporary committees of inquiry 10.2.4 The EP and Article 258/260 TFEU infringement proceedings 10.3 European Citizens’ Initiative (ECI) 10.3.1 Eligibility and procedure concerning the ECI 10.3.2 Right2Water – the first ECI 10.4 The European Environment Agency (EEA) 10.5 The Council of the EU and individual member states 10.6 Some concluding remarks PART III The role of member states in enforcing EU environmental law 11 Enforcement of EU environmental law by national authorities (1): general principles and environmental inspection responsibilities 11.1 General implementation duties of national authorities under EU law 11.1.1 Active legal responsibilities of national authorities under EU law 11.1.2 Passive legal responsibilities of national authorities under EU law 11.1.3 The principle of subsidiarity 11.2 The IMPEL network 11.2.1 Origins and initial development of IMPEL 11.2.2 Overview of IMPEL’s current organisational structure and activities 11.2.3 Increasing influence of IMPEL on EU environmental policy 11.2.4 Brief appraisal of IMPEL’s impact 11.3 Environmental inspections and EU controls 11.3.1 The first phase: Recommendation 2001/331 on environmental inspections (RMCEI) 11.3.2 Sectoral development of binding EU environmental inspection standards 11.3.3 The impact of EAP7: a trajectory towards general streamlining on inspection standards 11.4 Implementation, environmental inspections and the EU: some concluding remarks 11.4.1 Implementation duties 11.4.2 Environmental inspections 12 Enforcement of EU environmental law by national authorities (2): environmental civil liability 12.1 The Council of Europe’s 1993 ‘Lugano’ Convention 12.2 Developments of EU environmental policy on environmental civil liability 12.3 EU Directive 2004/35 on environmental liability (ELD) 12.3.1 Scope of liability under the ELD 12.3.2 Extent of liability: an operator’s specific obligations 12.3.3 Competent authorities: principal enforcers 12.3.4 Cross-border liability scenarios 12.4 Implementation of the ELD 12.4.1 The supervisory role of the European Commission 12.4.2 The CJEU 12.5 Environmental civil liability and the EU: some concluding remarks 13 Enforcement of EU environmental law by national authorities (3): environmental criminal liability 13.1 1998 Council of Europe Convention on the Protection of the Environment through Criminal Law (PECL Convention) 13.2 The origins of EU environmental criminal policy 13.2.1 The initial phases of policy development: the battle over intergovernmental and supranational competence (1957–2007) 13.3 EU environmental criminal law comes of age: Directive 2008/99 13.4 The impact of the 2007 Lisbon Treaty on the future prospects for EU environmental criminal law 13.5 Some brief reflections 14 EU environmental law enforcement: reflections Bibliography Index