IRISH ENVIRONMENTAL LAW ASSOCIATION
Recent developments in European environmental law between 23rd February,
2010 and 13th April, 2010
Caroline Gibney B.L.
A)
B)
C)
A)
Legislative Update
Environment Council update – 3002nd Environment Council meeting
Recent case law, 23rd February, 2010 to April 13th, 2010
Legislative Update

Commission Directive 2010/26/EU of 31 March 2010 amending
Directive 97/68/EC of the European Parliament and of the Council on the
approximation of the laws of the Member States relating to measures against
the emission of gaseous and particulate pollutants from internal combustion
engines to be installed in non-road mobile machinery
Amends the emission control strategy for non-road mobile machinery, such as
hedge trimmers and tree cutting equipment, and extends the type of engines
approved for use.

Commission Regulation (EU) No 276/2010 of 31 March 2010 amending
Regulation (EC) No 1907/2006 of the European Parliament and of the Council
on the Registration, Evaluation, Authorisation and Restriction of Chemicals
(REACH) as regards Annex XVII (dichloromethane, lamp oils and grill lighter
fluids and organostannic compounds)
Incorporates into the REACH regulations a number of decisions (455/2009/EC,
2009/424/EC and 2009/425/EC) relating to restrictions on the marketing and use
of a range of substances, including dichloromethane, lamp oils and grill lighter
fluids and organostannic compounds (chemical compounds based on tin with
hydrocarbon substituents).

Commission Regulation (EU) No 196/2010 of 9 March 2010 amending
Annex I to Regulation (EC) No 689/2008 of the European Parliament and of
the Council concerning the export and import of dangerous chemicals
Amends Regulation (EC) No 689/2008 to reflect regulatory changes in respect of
certain chemicals, including the banning of butralin, diniconazole-M, flurprimidol,
nicotine, propachlor, anthraquinone, dicofol, 2-naphthyloxyacetic acid, propanil
and tricyclazolefor, atrazine for pesticide use and the chemicals amitraz and
simazin for plant protection use and extending the PIC (Prior Informed Consent)
procedure contained in Regulation (EC) No 689/2008 to tributyltin compounds.

Commission Decision of 2 March 2010 (2010/135) concerning the
placing on the market, in accordance with Directive 2001/18/EC of the
European Parliament and of the Council, of a potato product (Solanum
tuberosum L. line EH92-527-1) genetically modified for enhanced content of
the amylopectin component of starch

Commission Decision of 2 March 2010 (2010/136) authorising the
placing on the market of feed produced from the genetically modified potato
EH92- 527-1 (BPS-25271-9) and the adventitious or technically unavoidable
presence of the potato in food and other feed products under Regulation (EC)
No 1829/2003 of the European Parliament and of the Council
Two decisions permitting a genetically modified potato product, Solanum
tuberosum L. line EH92-527-1 produced by BASF Plant Science, to be placed on
the market for cultivation and the production of starches for industrial use, as
well as use in animal feed (but not for human consumption). The decisions were
taken by the Commission after the Council was unable to reach a decision by
qualified majority.

Commission Decision of 25 February 2010 amending, for the purposes of
adapting to scientific and technical progress, the Annex to Directive
2002/95/EC of the European Parliament and of the Council as regards an
exemption for an application of cadmium
This decision extends an exemption for the use of cadmium in colour-converting
LED until July 1st, 2014. By then it is expected that appropriate cadmium-free
technology will have been developed so as to enable the use of cadmium to be
discontinued.
European Environmental Law updates between February 23rd, 2010 and 13th April, 2010
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B)
Environment Council Meeting
3002nd Council meeting in Brussels on March 15th, 2010
- Soil Protection
The Council was briefed on progress on a draft directive establishing a
framework for the protection of soil (link to the full progress report here). The
Council has not yet reached political agreement on this issue. Delegates were
divided on the issue of soil protection; some expressed a desire for an EUlevel instrument to fill the gap in environmental legislation, while others
opposed the proposal with regard to subsidiarity, the administrative burden
and cost-effectiveness.
- Biodiversity
The Council adopted conclusions setting out the EU headline target on halting
the loss of biodiversity and the degradation of ecosystems services and
restoring them in so far as feasible by 2020, and its vision for the better
protection of biodiversity in the EU by 2050. They also outline the EU's stance
concerning biodiversity protection at global level and the further development
of the EU position on the future international regime on access to genetic
resources and benefit sharing. In addition, the conclusions call for reinforced
mainstreaming of biodiversity objectives in crosscutting EU policies and
strategies. (link to the full set of conclusions here).
- Climate change
The Council adopted conclusions on the follow-up to the Copenhagen climate
conference (7 - 19 December 2009) (link to the full set of conclusions here).
They also requested the Commission to present an assessment of the
comparability and adequacy of greenhouse gas emission reductions offered by
third countries as well as an impact assessment of the EU's conditional move
to a 30% emissions cut.
- CO2 emissions of light vans
The Council discussed the proposed regulation setting CO2 emission standards
for light commercial vehicles (link to draft regulation here). The proposal
would provide for a limit for the average CO2 emissions from new light
commercial vehicles of 175g CO2/km, phased in from 2014 to 2016. It would
also set a long-term target of 135g CO2/km for 2020 and oblige
manufacturers to pay penalties if their fleet fails to meet the objective. Some
delegates argued that the objective of 135g CO2/km was difficult to achieve
by 2020 and asked for more time, while others asked that minibuses and
heavier vans be included. The derogation for low-volume manufacturers was
in principle supported.
European Environmental Law updates between February 23rd, 2010 and 13th April, 2010
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C)
Recent Case Law
Since 23rd February, 2010 the following judgments may be of interest to
members:
C-378/08
Judgment
Raffinerie Mediterranee
C-172/08
Judgment
Pontina Ambiente
These cases are considered here.
1.
C-378/08
Judgment
Raffinerie Mediterranee
This was a reference for a preliminary ruling concerns the interpretation of the
‘polluter pays’ principle. The dispute concerned the Priolo Gargallo region in Sicily
which had been declared a “Site of National Interest for decontamination
purposes” and in particular an area called the Augusta roadstead. The roadstead
had been affected by recurring incidents of environmental pollution, dating back
as far as the 1960s, when the Augusta-Priolo-Melilli site was established as a hub
for the petroleum industry. Since that time, numerous undertakings operating in
the hydrocarbon and the petrochemical sectors have been set up and/or
succeeded one another in the region.
The area was the subject of a ‘characterisation’ designed to assess the condition
of the land, the water-table, the coastal sea and the seabed. By Ministerial
Decree dated October 25th, 1999, the undertakings established on the
petrochemical site submitted their proposals for emergency safety measures and
measures for decontaminating the water-table, which were ultimately approved.
In view of the delay in implementing the proposed measures, the competent
public authority required the undertakings to decontaminate and reinstate the
seabed of the Augusta roadstead, and in particular to remove contaminated
sediment there up to a depth of two metres. It indicated that if those
undertakings failed to comply, the works would be carried out by the authorities
on their own initiative at the expense of those undertakings.
These measures were the subject of an action by the undertakings which was
ultimately unsuccessful. Subsequently, the administrative authorities came to the
view that the measures that they had previously approved were inadequate for
the purpose of remedying the pollution in the Augusta roadstead. Faced with a
refusal to comply on the part of the applicant companies, it was decided that the
companies should be required to take further measures, including the building of
a dam. This decision was challenged.
The referring Italian court made the point that there had been a whole succession
of petrochemical undertakings in the area, so that it would be not only impossible
but also pointless to determine each individual’s share of responsibility, especially
since the very fact of pursuing activities which are in themselves hazardous on a
contaminated site should be regarded as sufficient to hold those undertakings
liable.
The referring court asked, in essence, whether the ‘polluter pays’ principle
precludes national legislation which allows the competent authority to impose
European Environmental Law updates between February 23rd, 2010 and 13th April, 2010
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measures for remedying environmental damage on commercial operators on
account of the fact that their installations are located close to a contaminated
area, without carrying out any preliminary investigation into the occurrence of the
contamination or establishing a causal link between the environmental damage
and those operators or indeed intent or negligence on the part of those operators.
As stated in the preamble to Directive 2004/35, not all forms of environmental
damage can be remedied by means of the liability mechanism and for the
mechanism to be effective, there needs to be, inter alia, a causal link
established between one or more identifiable polluters and concrete and
quantifiable environmental damage.
However, the court noted that Directive 2004/35 does not specify how such
a causal link is to be established. Under the shared competence enjoyed by
the European Union and the Member States in environmental matters, where a
criterion necessary for the implementation of a directive adopted on the basis of
Article 175 EC has not been defined in the directive, such a definition falls within
the competence of the Member States and they have a broad discretion, in
compliance with the Treaty rules, when laying down national rules developing or
giving concrete expression to the ‘polluter pays’ principle
Accordingly, the legislation of a Member State may provide that the competent
authority has the power to impose measures for remedying environmental
damage on the basis of the presumption that there is a causal link
between the pollution found and the activities of the operator or operators
concerned due to the fact that their installations are located close to that
pollution.
However, since, in accordance with the ‘polluter pays’ principle, the obligation to
take remedial measures is imposed on operators only because of their
contribution to the creation of pollution or the risk of pollution (see, by analogy,
Case C-188/07 Commune de Mesquer [2008] ECR I-4501, paragraph 77), in
order for such a causal link to thus be presumed, the competent authority
must have plausible evidence capable of justifying its presumption, such
as the fact that the operator’s installation is located close to the pollution found
and that there is a correlation between the pollutants identified and the
substances used by the operator in connection with his activities.
The court concluded that: Directive 2004/35 does not preclude national legislation
which allows the competent authority acting within the framework of the directive
to operate on the presumption, also in cases involving diffuse pollution, that there
is a causal link between operators and the pollution found on account of the fact
that the operators’ installations are located close to the polluted area. However,
in accordance with the ‘polluter pays’ principle, in order for such a causal
link thus to be presumed, that authority must have plausible evidence
capable of justifying its presumption, such as the fact that the operator’s
installation is located close to the pollution found and that there is a correlation
between the pollutants identified and the substances used by the operator in
connection with his activities.
Articles 3(1), 4(5) and 11(2) of Directive 2004/35 must be interpreted as
meaning that, when deciding to impose measures for remedying environmental
damage on operators whose activities fall within Annex III to the directive (i.e.
activities to which strict liability attaches), the competent authority is not required
to establish fault, negligence or intent on the part of operators whose activities
are held to be responsible for the environmental damage. On the other hand, that
authority must carry out a prior investigation into the origin of the pollution
European Environmental Law updates between February 23rd, 2010 and 13th April, 2010
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found, and it has a discretion as to the procedures, means to be employed and
length of such an investigation. Second, the competent authority is required to
establish, in accordance with national rules on evidence, a causal link between
the activities of the operators at whom the remedial measures are directed and
the pollution.
(A further point discussed in the decision is how to apply the cut-off date in the
Directive of April 30th, 2007. Following submissions on the point, the court held
that Directive 2004/35 applies to damage caused by an emission, event or
incident which took place after April 30th 2007 where such damage derives either
from activities carried out after that date or activities which were carried out but
had not finished before that date.)
2.
C-172/08
Judgment
Pontina Ambiente
Pontina Ambiente, with a registered office in Rome, collected and disposed of
waste. In particular, it received solid waste from various municipal authorities in
Regione Lazio. It stored the waste and processed it in order to produce
derivatives and compost and to reduce its volume.
Pursuant to national law, the company was liable to pay up front a levy on solid
waste to Regione Lazio, due not later than the month following the calendar
quarter during which the waste was deposited. Pontina Ambiente was then
obliged to seek reimbursement of this levy from the municipal authorities sending
waste to landfill.
When the company was late paying the levy for the third and fourth quarters of
2004, Regione Lazio imposed two tax assessments on it in addition to fines under
national law. Pontina Ambiente sought to annul these measures.
The company raised the incompatibility with EC law of certain rules relating to the
levy in terms of determination of the person liable to pay the levy and the system
of penalties for late payment, in particular the relevant provisions of Directive
2000/35. It was also critical of the fact that, while the delay in paying the levy
was a result of the municipal authorities’ failure to reimburse the levy to Pontina
Ambiente, there was no mechanism whereby the municipal authorities could be
punished for their failure to pay.
The Court of Justice firstly held that Article 10 of Directive 1999/31 required the
Member States to take measures to ensure that the price charged for waste
disposal in a landfill covered all the costs involved in the setting up and operation
of the facility. This was in line with the “polluter pays” principle.
The consequence was that whatever the national rules might be governing landfill
sites, they must ensure that all the operating costs of such a site were actually
borne by the holders of the waste deposited in the landfill for disposal.
However, the Court noted that Article 10 of Directive 1999/31 did not impose on
the Member States a specific method of financing the cost of a landfill.
Consequently, as European Union law currently stands, there is no legislation
adopted on the basis of Article 175 EC imposing a specific method upon the
Member States for financing that cost, so that the cost may, in accordance with
the choice of the Member State concerned, equally well be financed by means of
a tax or of a charge or in any other manner
European Environmental Law updates between February 23rd, 2010 and 13th April, 2010
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The Court therefore concluded that Article 10 of Directive 1999/31 must be
interpreted as meaning that it did not preclude a national provision, such as that
at issue in the main proceedings, which made the operator of a landfill site
subject to a levy to be reimbursed by the local authority depositing the waste and
which provided for financial penalties to be imposed on that operator for late
payment of the levy, on condition that:
(a) those rules were accompanied by measures to ensure that the levy was
actually reimbursed within a short time; and
(b) that all the costs of recovery, and in particular, the costs resulting from
late payment of amounts which that authority owes to the site operator
on that account, including costs incurred in order to avoid any financial
penalty which might be imposed on the site operator, were passed on in
the price to be paid by the authority to that operator.
It was for the national court to ascertain whether those conditions had been
satisfied.
Caroline Gibney BL
cgibney@lawlibrary.ie
13th April, 2010
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