Recent Cases of the ECJ

Aarhus Convention ‘access to justice’ no direct effect in EU law

This reference for a preliminary ruling brought by the Slovakian Supreme Court concluded that Article 9(3) of the Aarhus Convention does not enjoy direct effect in EU law. This holding is in line with a previously issued opinion by Advocate General E. Sharpston discussed earlier in EEL news service 2010/12. The EU joined the Aarhus Convention through Council Decision 2005/370/EC. The Convention consists of three pillars: access to information, public participation in decision making and access to justice. The first two pillars are regulated by the EU but the last one, access to justice in environmental matters, is not. A proposal from the Commission to regulate access to justice (COM(2003)624) was never accepted and the Court now passes up on an opportunity to help remedy the situation that access to justice is not regulated by EU law. It did stress that national courts must take into account, ‘to the fullest extent possible’, the requirements of the Aarhus convention. Whether this will make much of a difference remains to be seen since that obligation was already incumbent on the Member States. Further fragmentation of the rules on access to justice could occur as a result of differing interpretations by the national Courts. * Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, 08/03/2011


French hamster not sufficiently protected (AG opinion)

In a case brought by the Commission against France, on 20 January 2011 Advocate General Kokott advised the Court to rule against France for failing to sufficiently protect the hamster (Cricetus cricetus) within the Strasbourg area. The basis for the finding was a breach of Article 12 (1) of the Habitats Directive (92/43/EEC) which lists several prohibitions that have as their aim the protection of certain animal species (such as a prohibition for deterioration or destruction of breeding sites or resting places). Notwithstanding the fact that there was no breach of these prohibitions on the part of France, the AG did find that certain pro-active or positive obligations arise in the event that a population of a protected species is in a dire condition. The documented hamster population dropped from 1167 in 2001 to about 170 in 2007. The estimated amount for the population to be sustainable in the long run is 1500. France took agricultural and urban-planning related measures to protect the Hamster but these were thought to be either insufficient or incomplete at the critical time for the dispute. * Case C-383/09 European Commission v. French Republic, 20/01/2011 (not yet in English) 

Accidental traces of GMO pollen in honey triggers EU permit requirements (AG opinion)

The reference for a preliminary ruling is made by the Bayerische Verwaltungsgerichtshof (Germany) in proceedings between the Land (region) of Bavaria and several amateur beekeepers (Bablok and others). The Advocate General (Y. Bot) had to judge whether honey containing even small amounts of pollen, accidentally received from genetically modified corn, is subject to EU regulations requiring prior approval before bringing GMO products on the market. The AG considered that the pollen is not to be considered an ‘organism’ but inanimate or dead material as it quickly loses its fertility as a result of desiccation. However, even where the pollen is not capable of transferring actively DNA material, the honey containing the pollen nevertheless is a foodstuff ‘containing GMO’ and should consequently be labeled accordingly as per EU rules. The AG suggests that it does not matter that a previous permit had been issued for the corn creating the pollen. The fact that the pollen entered the honey accidentally is moreover not to be relevant since the health risk to humans and animals eating the product would be the same, whether it is purposefully added or not. In the event that the Court follows this opinion, labeling accidental GMO traces in foodstuffs will become an obligation.* Case C-442/09 Bablok and others v Freistaat Bayern, 09/02/2011 (not yet in English) 


Emergency measure Commission on bluefin tuna partly invalid due to incompliance with non-discrimination principle

This reference for a preliminary ruling has been made in proceedings between AJD Tuna Ltd and the Direttur tal-Agrikoltura u s-Sajd (Director for Agriculture and Fisheries) and the Avukat Generali (Advocate General. It concerns a decision whereby the Director prevented AJD Tuna from importing into Malta bluefin tuna for its farming and fattening activities. The decision was intended to give effect to Commission Regulation No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean. The referring Maltese Court, Prim’Awla tal-Qorti Civili, posed several questions for a preliminary ruling related to the validity of this Regulation. In examining these questions, the Court ruled that the validity was not affected by the application of a number of legal principles (such as: legitimate expectation, proportionality, effective judicial protection and a requirement to state reasons). It was found however that the Regulation breached the principle of non-discrimination. It was consequently found to be invalid in so far as the prohibitions it contains took effect from 23 June 2008 for Spanish seiners, but already from 16 June 2008 for other seiners, without such difference in treatment being objectively justified. * Case C-530/08 AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd 17/03/2011 

Malta fails to fulfil inland water obligations

In proceedings brought by the Commission against the Republic of Malta, the Court had to rule on the failure of Malta to fulfill obligations in respect to Directive 2000/60/EC establishing a framework for Community action in the field of water policy and the status of inland surface water. The Commission alleged that Malta should have established monitoring programmes on the status of inland surface water and submitted summary reports thereon. The Court dismissed certain pleas by Malta as late which were only advanced for the first time in the rejoinder. Since at the critical date for ascertaining the case the failure of Malta is undisputed, the court ruled in favor of the Commission.* Case C-351/09 European Commission v Republic of Malta, 22/12/2010 

Nickel carbonates carcinogenic and toxic

Nickel carbonates were classified as carcinogenic and toxic, to the dislike of its producers. In a British case, the High Court of Justice (England and Wales) asked the ECJ whether the Commission directives regulating this classification was valid or not.  The AG finds that the Commission did not manifestly exceed the bounds of its discretion where it based its nickel carbonates decision on findings with regard to other nickel compounds. This method of predicting properties of chemicals based on the “read-across” method is generally accepted as scientifically valid, and is explicitly endorsed in REACH and implicitly in the EC rules at stake in this case. As for the accusation that the risks during normal handling or use of the substances were not assessed (some nickel carbonates were said to be used only in laboratories) , the AG notes that in his view, hazards and risks are being confused here. The EU system for classifying and labelling substances is based on the reporting of information relating to the hazards associated with substances, as is stated expressly in Commission Directive 93/67/EEC laying down the principles for assessment of risks to man and the environment of notified substances. Under Article 2(2) of this Directive, ‘hazard identification [of a substance]’  is defined as ‘the identification of the adverse effects which [that] substance has an inherent capacity to cause’. Hazards must therefore be classified independently of the manner or location in which the substance is used. Risk assessment on the other hand is concerned with the likelihood that one of the hazards associated with a substance will occur as a result of human or environmental exposure to that substance. Risk management measures thus may vary considerably depending on the conditions and types of use. Other arguments also did not disclose issues that could affect the validity of the contested Commission directives.* Case C-14/10 Nickel Institute v Secretary of State for Work and Pensions  24/03/2011 

Fine for airport noise likely to be upheld (AG opinion)

This reference for a preliminary ruling is made in proceedings between European Air Transport (EAT), an airline forming part of the DHL group and Institut Bruxellois de Gestion de l’Environnement (IBGE), a regional body responsible for supervising environmental legislation. The latter imposed an administrative penalty of EUR 56.113 on EAT for noise levels measured at the ground in excess of the allowed levels set. AET appealed claiming that not the measurement ‘at the ground’ but measurement ‘at source’ is the mandatory criterion under international law. The AG considered that the limits on noise levels at issue were not ‘operating restrictions’ within the meaning of Directive 2002/30/EC on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports. The AG therefore concluded that Member States are free to establish such noise limits at airports as no conflict arises with EU harmonization rules.* Case C-120/10 European Air Transport SA v Collège d’Environnement de la Région de Bruxelles-Capitale, Région de Bruxelles-Capitale, 17/02/2011 

Brussels Airport not a ‘project’ but EIA Directive may still be applicable

These proceedings for a preliminary ruling were brought by Brussels Hoofdstedelijk Gewest (Brussels Capitol Region) and a number of other applicants against the Vlaams Gewest (Flemish Region). The case concerned a decision relating to the operation of the Bruxelles-National Airport. One of the questions posed asked whether two separate permits are required for the infrastructure works (i.e. the construction of a runway) for an airport and the operation of that airport. It also asked if the term ‘construction’ in the EIA Directive 85/337/EECshould be interpreted as meaning that an environmental impact report should be compiled not only for the execution of the infrastructure works but also for the operation of the airport. The Court ruled that the renewal of the existing permit, in the absence of any works or interventions, cannot be classified as a ‘project’. The permit for the operation of the airport would consequently not be subject to an EIA under the Directive. It did point out that the cumulative effect of a number of works (such as the infrastructure works) may trigger the Directive and that this is for the national court to decide.* Case C-275/09 Brussels Hoofdstedelijk Gewest and others v Vlaams Gewest 17/03/2011 

Failure to transose EIA Directive into Irish legal order

The Commission brought an action against Ireland for failure to ensure full and correct transposition of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. Ireland had several laws in place that aimed to transpose this Directive, but the Court found that these were not sufficient. Judgements from the Irish Supreme Court which found that there should be a consistent interpretation of Irish law with the Directive also did not constitute sufficient grounds for the Court to find that the Directive was correctly transposed into the Irish legal order. One bone of contention was overlap of decision making by respective authorities. This is in principle allowed under the Directive. In the present case however, one of the authorities responsible for licensing a project may make its decision without an EIA being carried out. This situation, possibly leading to a project being undertaken without an environmental assessment, was deemed irreconcilable with the Directive. Also the exclusion of demolition works from the scope of the Irish EIA regulations was found to constitute a failure to correctly transpose the EIA Directive.* Case C-50/09 European Commission v Ireland, 03/03/2011 

Flanders, Brussels and Wallonia in breach of EIA rules

The Commission brought these proceedings against Belgium for an alleged failure in the Flemish, Brussels and Wallonia regions to give full effect to EIA Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. The Flemish decree transposing the EIA Directive is too concerned with the ‘size of the project’ and does not pay enough attention to other criteria such as the possible cumulative effects of one project with other projects. The use of natural resources, production of waste etc. was also not sufficiently taken into account. The Court mentioned that even a small project may have a significant effect on the environment. In relation to the Brussels Region it ruled similarly. The Wallonia Region was found to not have enough laws in place to ensure that information would be provided concerning the nature of a decision to be taken in relation to the EIA Directive. As a result of the Judgment the present laws in the Belgian regions will need to be modified accordingly. * Case C-435/09 Commission v Kingdom of Belgium, 24/03/2011 (not yet in English)