EUROPEAN
ENVIRONMENTAL, ENERGY
AND CLIMATE LAW
2024 - 25
KURT DEKETELAERE
,INHOUDSOPGAVE
Competences .................................................................................................................................................. 3
TEU ...................................................................................................................................................................... 3
TFEU .................................................................................................................................................................... 5
Title XX: the environment ............................................................................................................................... 7
Title XXI: EU energy policy ............................................................................................................................. 10
Charter of Fundamental Rights ......................................................................................................................... 11
Climate cases ................................................................................................................................................. 11
environmental policy instruments ................................................................................................................ 12
Introduction ....................................................................................................................................................... 12
The policy instruments ...................................................................................................................................... 13
Right to access to environmental information .............................................................................................. 13
Public participation in environmental decision making (art. 6,7 and 8)........................................................ 14
Directive 2003 on public access to environmental information ................................................................... 14
Regulation of 2006 on the application of the provisions of the Aarhus Convention to Community
institutions and bodies .................................................................................................................................. 15
Conclusion ......................................................................................................................................................... 15
Directive on the protection of environment through criminal law .................................................................... 15
Directive on environmental liability with regard to the prevention and remedying of environmental damage
.......................................................................................................................................................................... 17
3 directives ................................................................................................................................................... 19
Industrial emmissions directive (IED) ................................................................................................................ 19
IPPC directive 1996 ....................................................................................................................................... 19
IED -> 14 years later (2010) ........................................................................................................................... 20
Objectives:..................................................................................................................................................... 20
Environmental impact assessment directive ..................................................................................................... 21
Seveso III directive ............................................................................................................................................. 22
+ Emission trading system directive .................................................................................................................. 24
Strategic environmental impact assassment directive (SEA-D) ......................................................................... 24
specific environmental policy framework .......................................................................................................... 26
Water ........................................................................................................................................................... 27
water framework directive ................................................................................................................................ 27
2 big sectors in EU environmental law........................................................................................................... 29
EU Waste law .................................................................................................................................................... 29
Regulation on the making available on the Union market and the export from the Union of certain
commodities and products associated with deforestation and forest degradation .......................................... 32
Regulation on nature restoration ...................................................................................................................... 34
Directive on the conservation of wild birds ....................................................................................................... 37
Directive on the conservation of natural habitats and of wild fauna and flora ................................................ 37
ZELFSTUDIE ................................................................................................................................................... 39
1
, Regulation on the Governance of the energy union and climate action ........................................................... 39
Directive on energy efficiency ........................................................................................................................... 40
Directive on the energy performance of buildings ............................................................................................ 41
Revised Energy Performance of Buildings Directive...................................................................................... 43
Directive restructuring the EU’s system for the taxation of energy products and electricity ............................ 45
Regulation on a market correction mechanism to protect EU citizens and the economy against excessively
high prices ......................................................................................................................................................... 45
Council Regulation on an emergency intervention to address high energy prices ............................................ 46
Concerning the two energy regulations ............................................................................................................ 46
EU nature law ............................................................................................................................................... 49
EU legal framework on the use of renewable sources (RES) ............................................................................. 50
Policy instruments ......................................................................................................................................... 51
EU Energy law: Liberalisation and market organisation ................................................................................. 56
IEM: the 1st package ......................................................................................................................................... 57
IEM: the 2nd package........................................................................................................................................ 58
IEM: the 3RD package ....................................................................................................................................... 59
Creating a common energy wholesale market.............................................................................................. 60
Tendering option in the Electricity Directive ................................................................................................. 60
Transmission and distribution ....................................................................................................................... 61
Supply ............................................................................................................................................................ 65
Establishment of ACER .................................................................................................................................. 67
New developments Directive 2019/944 ............................................................................................................ 68
European energy policy and law – progress? .................................................................................................... 68
Opinions of the Court of Justice .................................................................................................................... 68
EU policy ....................................................................................................................................................... 69
European Climate Law....................................................................................................................................... 70
EU ETS directive ................................................................................................................................................. 72
EU ETS II............................................................................................................................................................. 74
Effort charing regulatioN .................................................................................................................................. 75
CBAM REGULATION........................................................................................................................................... 77
sustainable finance package ......................................................................................................................... 79
Taxonomy regulation ........................................................................................................................................ 79
CSRD .................................................................................................................................................................. 80
CSDDD (= CS triple D) ......................................................................................................................................... 81
Wet niet vanbuiten kennen of uitprinten -> niet meenemen naar examen
Elke week teksten op toledo over de les die week
Ander vak is apart examen en aparte punten die ze dan op een of andere manier gaan samenvoegen
15min of preparation (de voorbereiding gaat prof niet vragen), dan 15min babbelen
3 questions out of a list
2
,COMPETENCES
The green deal
• big project of the last European commission
• has led to an enormous amount of legislation
• not an environmental plan, but a growth strategy that the EU has presented to make Eur the first
climate neutral part of this planet thru sectoral policies => taking action thru a huge amount of
legislation, but means that there is a problem with enforcement and implementation of the legislation
in the EU and in domestic national law
• a legislative pause would be useful to make sure every MS that has transposed the EU legislation in
their domestic legislation can finally apply, survey the application and enforce it, but isn’t going to
happen
Questions to ask yourself:
the 1st one: is the concerned body that wants to adapt legislation competent to do so?
Is the EU really competent to take environmental, energy and climate legislation?
Is there a legal basis for the adoption of those regulations and directives? Bcs every legislation has to be based
on an article of the TFEU
We will look at the legislation in the TEU, TFEU and ECHR about environment, energy and climate
Sustainable development = going for an economic growth model where we try to reconcile: environmental
protection, eco prosperity and social protection
ð a balanced development of environmental, eco and social
TEU
What does TEU say about sustainable development, climate, environment and energy
Art. 2: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule
of law and respect for human rights, including the rights of persons belonging to minorities. These values are
common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity
and equality between women and men prevail.’
> ‘the rule of law and respect for HR’ -> HR is an important issue for sustainability bcs a lot of court cases
deal with the interaction between environmental/climate protection and protection of HR
> e.g. Swiss case in which ECtHR stated that the protection of climate can be achieved through
protection of HR
> but is there a hierarchy between HR legislation and EU legislation? Not decided on in the Swiss case
Art. 3.3: ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe
based on balanced economic growth and price stability, a highly competitive social market economy, aiming at
full employment and social progress, and a high level of protection and improvement of the quality of the
environment. It shall promote scientific and technological advance.’
> ‘internal market which shall work for the sustainable … quality of the environment’ = notion of
sustainable development
> Section 3 mentions what the Union will do within its territory, section 5 about what will EU do outside
of its territory
3
,Art. 4.3: ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the
obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which
could jeopardise the attainment of the Union's objectives.’
> Important from the energy perspective -> built on solidarity
> ‘… sincere cooperation …’ -> security of supply of the individual energy markets in hopes to end with
1 integrated energy market
Art. 5:
‘1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is
governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon
it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon
the Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall
act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member
States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of
the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the
application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with
the principle of subsidiarity in accordance with the procedure set out in that Protocol.
4. Under the principle of proportionality, the content and form of Union action shall not exceed what is
necessary to achieve the objectives of the Treaties.
The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the
application of the principles of subsidiarity and proportionality.’
> Deals with one of the key issues of EU Law: EU is only competent when made explicitly competent by
a treaty basis for a specific matter (= the principle of conferral)
> And principle of proportionality (union can act but only if proportionate = must really pinpoint the
problem it wants to solve) and principle of subsidiarity (check if a topic can better be dealt with at eu
level than at MS level: we take action at EU level if this is better than at a national level) who limits the
competence given to the EU
Art. 6:
‘1. The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the
European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the
same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the
Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions
in Title VII of the Charter governing its interpretation and application and with due regard to the explanations
referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental
Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms and as they result from the constitutional traditions common to the Member States,
shall constitute general principles of the Union's law.’
> HR again
> Final sentence of section 2: such accession to the Eur convention shall not affect the EU’s
competences as defined in the treaties
4
,Most articles are looking at the EU in its internal effects
But EU measures apply in each MS, but exceptions e.g. rules on the Euro currency, the Schengen area (some
countries are opting out, but sometimes enhanced cooperation: some states go ahead even tho some don’t
want to follow: art 20)
Enhanced cooperation in environmental field e.g. an energy tax but in tax matters unanimity is necessary
Art. 21: ‘1. The Union's action on the international scene shall be guided by the principles which have inspired its
own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the
rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human
dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and
international law.
The Union shall seek to develop relations and build partnerships with third countries, and inter national,
regional or global organisations which share the principles referred to in the first subparagraph. It shall
promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of
cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of inter national
law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the
purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with
the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries,
with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive
abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the
sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global
governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the
development and implementation of the different areas of the Union's external action covered by this Title and
by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other
policies.
The Union shall ensure consistency between the different areas of its external action and between these and its
other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign
Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.’
> common foreign and security policy
> Section 2 d and f: sustainable development and environmental protection
> For the international policy how central sustainable development is, but no enforcement mechanisms
> Only Kyoto protocol had an enforcement mechanism and was killed of bcs of that
TFEU
Article 2:
‘1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate
and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the
Union or for the implementation of Union acts.
5
,2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the
Union and the Member States may legislate and adopt legally binding acts in that area. The Member States
shall exercise their competence to the extent that the Union has not exercised its competence. The Member
States shall again exercise their competence to the extent that the Union has decided to cease exercising its
competence.’
Article 3.1: ‘The Union shall have exclusive competence in the following areas …’
Article 4:
‘1. The Union shall share competence with the Member States where the Treaties confer on it a competence
which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas …
(e) environment; (i) energy; (k) common safety concerns in public health matters, for the aspects defined in this
Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out
activities, in particular to define and implement programmes; however, the exercise of that competence shall
not result in Member States being prevented from exercising theirs.’
Article 6: ‘The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be …
(a) protection and improvement of human health; (f) civil protection;’
Art. 2, 3, 4 and 6: extinction between exclusive and shared competences
> Exclusive = no legislative powers for the MS
o Topic of the exclusive competence has to be thoroughly described
> Shared competence = legislation of the MS and EU together
o Art. 4: shared competences section e environment, section i energy
> 4.3 pollution is becoming a problem in space (space waste) => has to be regulated
> EU has to invest in research, technology and innovation
> 4 k: public health matters closely connected to environmental field
> 6: protection and improvement of health and in f: civil protection -> also related bcs hurricanes,
earthquakes and floodings related to climate change -> but here competence of the union is limited
Art 9: ‘In defining and implementing its policies and activities, the Union shall take into account requirements
linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight
against social exclusion, and a high level of education, training and protection of human health.’
> =>if develops policy, has to take into account …
Art 11: ‘Environmental protection requirements must be integrated into the definition and implementation of
the Union's policies and activities, in particular with a view to promoting sustainable development. Consumer
protection requirements shall be taken into account in defining and implementing other Union policies and
activities.’
> Principle originating in environmental title of the treaty (Title XX) but so important that promoted to
opening articles of the treaty
> = integration principle: before measure is proposed/adopted there must be an analysis of the
consequences of the measures
> But EU doesn’t do an environmental check before proposing new legislation even tho on paper they
say they do -> other issues are esteemed to be more important
> So, what is the legal value of art. 11? Only if there is a manifest disregard to art 11
13: ‘In formulating and implementing the Union's … , the Union and the Member States shall, since animals are
sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or
administrative provisions and customs of the Member States relating in particular to religious rites, cultural
traditions and regional heritage.’
6
, > = welfare of animals
> Some countries gave/want to give legal personality to animals so they can advocate for themselves
> Treaty: animals are sensitive beings (so no objects)
TITLE XX: THE ENVIRONMENT
191:
‘1.Union policy on the environment shall contribute to pursuit of the following objectives:
- preserving, protecting and improving the quality of the environment,
- protecting human health,
- prudent and rational utilisation of natural resources,
- promoting measures at international level to deal with regional or worldwide environmental problems, and in
particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of
situations in the various regions of the Union. It shall be based on the precautionary principle and on the
principles that preventive action should be taken, that environmental damage should as a priority be rectified at
source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where
appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic
environmental reasons, subject to a procedure of inspection by the Union.
3. In preparing its policy on the environment, the Union shall take account of:
— available scientific and technical data,
— environmental conditions in the various regions of the Union,
— the potential benefits and costs of action or lack of action,
— the economic and social development of the Union as a whole and the balanced development of its
regions.
4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third
countries and with the competent international organisations. The arrangements for Union cooperation may be
the subject of agreements between the Union and the third parties concerned.
The previous subparagraph shall be without prejudice to Member States' competence to negotiate in
international bodies and to conclude international agreements.’
> ‘in particular combatting climate change’ -> only place in EU treaties where they mention the notion
of climate change
> EU is leader in climate change protection since USA doesn’t anymore => EU has competence in climate
change
> ‘shall take into account the diverse regions of the Union’ most important notion: aim
> ‘shall be based on …’ = principles at the bases of the regulations the EU is going to adopt BUT
> BUT these principles don’t allow you to go to court for something that is not in accordance to those
principles
> Only marginal violation will lead to action
> But those principles have obtained a certain but limited legal value
> Precautionary principle allows government to take action against situations which aren’t proven to
cause damage but there’s a strong suspicion
> Limitations in section 3: breaks installed to lower the level of environmental protection ->
environmental quality is quite different in different MS
> The limitations are aiming at developing a policy that is acceptable for some MS
> Challenge = find a balance between the front running MS and the lagging MS
> ‘available scientific and technical data’ is still a problem for the MS -> a challenge for the union is to
have comparable data from the MS and in order to do so there’s a specific agency (Eur environmental
7
, agency) responsible to connect this data, even some specific networks collection reliable and
comparable data
192: ‘1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure
and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what
action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice
to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after
consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions,
shall adopt:
a. provisions primarily of a fiscal nature;
b. measures affecting:
— town and country planning,
— quantitative management of water resources or affecting, directly or indirectly, the availability of
those resources,
— land use, with the exception of waste management;
c. measures significantly affecting a Member State's choice between different energy sources and the
general structure of its energy supply.
The Council, acting unanimously on a proposal from the Commission and after consulting the European
Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary
legislative procedure applicable to the matters referred to in the first subparagraph.
3. General action programmes setting out priority objectives to be attained shall be adopted by the European
Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting
the Economic and Social Committee and the Committee of the Regions.
The measures necessary for the implementation of these programmes shall be adopted under the terms of
paragraph 1 or 2, as the case may be.
4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and
implement the environment policy.’
> = adoption of real environmental protection measures (not internal market measures with an
environmental spinoff) -> 1st legal basis to adopt environmental protection measures, 2nd treaty basis
is art. 114
> Distinction between environmental protection measures which we adopt according to the ordinary
legislative procedure
o = commission proposes, parliament reflects and take in a position and council of MS come to
a position if agreement on the text it has to be adopted in parliament with 50+1 majority but
in council a qualified majority
BUT art 192.2: in a number of cases, we go for special legislative procedure: commission proposes but
parliament has no decision right on the measure but can only give advice so council decides with
unanimity on the proposed measure, but council can decide with unanimity that they won't decide
with unanimity (= paserelle) but almost never happens!
> 192.4 enormous consequences -> MS must finance all the investments
o Big problem for many MS => they can't pay for it so don’t take measures
> 192.3 environmental action programs by the Union
o Not legally binding by itself, but always an annex
o e.g. 8th environmental action program (decision 2022/591)
->should be fulfilled by 2030
• Art. 1: we will try to realise through this environmental action program the UN sustainable
development goals, also aiming at realizing the principles of the different international
environmental treaties to which the union has signed up and also aiming at realizing the goals
of the green deal (= an economic integration policy which should lead to a climate neutral
society)
8
ENVIRONMENTAL, ENERGY
AND CLIMATE LAW
2024 - 25
KURT DEKETELAERE
,INHOUDSOPGAVE
Competences .................................................................................................................................................. 3
TEU ...................................................................................................................................................................... 3
TFEU .................................................................................................................................................................... 5
Title XX: the environment ............................................................................................................................... 7
Title XXI: EU energy policy ............................................................................................................................. 10
Charter of Fundamental Rights ......................................................................................................................... 11
Climate cases ................................................................................................................................................. 11
environmental policy instruments ................................................................................................................ 12
Introduction ....................................................................................................................................................... 12
The policy instruments ...................................................................................................................................... 13
Right to access to environmental information .............................................................................................. 13
Public participation in environmental decision making (art. 6,7 and 8)........................................................ 14
Directive 2003 on public access to environmental information ................................................................... 14
Regulation of 2006 on the application of the provisions of the Aarhus Convention to Community
institutions and bodies .................................................................................................................................. 15
Conclusion ......................................................................................................................................................... 15
Directive on the protection of environment through criminal law .................................................................... 15
Directive on environmental liability with regard to the prevention and remedying of environmental damage
.......................................................................................................................................................................... 17
3 directives ................................................................................................................................................... 19
Industrial emmissions directive (IED) ................................................................................................................ 19
IPPC directive 1996 ....................................................................................................................................... 19
IED -> 14 years later (2010) ........................................................................................................................... 20
Objectives:..................................................................................................................................................... 20
Environmental impact assessment directive ..................................................................................................... 21
Seveso III directive ............................................................................................................................................. 22
+ Emission trading system directive .................................................................................................................. 24
Strategic environmental impact assassment directive (SEA-D) ......................................................................... 24
specific environmental policy framework .......................................................................................................... 26
Water ........................................................................................................................................................... 27
water framework directive ................................................................................................................................ 27
2 big sectors in EU environmental law........................................................................................................... 29
EU Waste law .................................................................................................................................................... 29
Regulation on the making available on the Union market and the export from the Union of certain
commodities and products associated with deforestation and forest degradation .......................................... 32
Regulation on nature restoration ...................................................................................................................... 34
Directive on the conservation of wild birds ....................................................................................................... 37
Directive on the conservation of natural habitats and of wild fauna and flora ................................................ 37
ZELFSTUDIE ................................................................................................................................................... 39
1
, Regulation on the Governance of the energy union and climate action ........................................................... 39
Directive on energy efficiency ........................................................................................................................... 40
Directive on the energy performance of buildings ............................................................................................ 41
Revised Energy Performance of Buildings Directive...................................................................................... 43
Directive restructuring the EU’s system for the taxation of energy products and electricity ............................ 45
Regulation on a market correction mechanism to protect EU citizens and the economy against excessively
high prices ......................................................................................................................................................... 45
Council Regulation on an emergency intervention to address high energy prices ............................................ 46
Concerning the two energy regulations ............................................................................................................ 46
EU nature law ............................................................................................................................................... 49
EU legal framework on the use of renewable sources (RES) ............................................................................. 50
Policy instruments ......................................................................................................................................... 51
EU Energy law: Liberalisation and market organisation ................................................................................. 56
IEM: the 1st package ......................................................................................................................................... 57
IEM: the 2nd package........................................................................................................................................ 58
IEM: the 3RD package ....................................................................................................................................... 59
Creating a common energy wholesale market.............................................................................................. 60
Tendering option in the Electricity Directive ................................................................................................. 60
Transmission and distribution ....................................................................................................................... 61
Supply ............................................................................................................................................................ 65
Establishment of ACER .................................................................................................................................. 67
New developments Directive 2019/944 ............................................................................................................ 68
European energy policy and law – progress? .................................................................................................... 68
Opinions of the Court of Justice .................................................................................................................... 68
EU policy ....................................................................................................................................................... 69
European Climate Law....................................................................................................................................... 70
EU ETS directive ................................................................................................................................................. 72
EU ETS II............................................................................................................................................................. 74
Effort charing regulatioN .................................................................................................................................. 75
CBAM REGULATION........................................................................................................................................... 77
sustainable finance package ......................................................................................................................... 79
Taxonomy regulation ........................................................................................................................................ 79
CSRD .................................................................................................................................................................. 80
CSDDD (= CS triple D) ......................................................................................................................................... 81
Wet niet vanbuiten kennen of uitprinten -> niet meenemen naar examen
Elke week teksten op toledo over de les die week
Ander vak is apart examen en aparte punten die ze dan op een of andere manier gaan samenvoegen
15min of preparation (de voorbereiding gaat prof niet vragen), dan 15min babbelen
3 questions out of a list
2
,COMPETENCES
The green deal
• big project of the last European commission
• has led to an enormous amount of legislation
• not an environmental plan, but a growth strategy that the EU has presented to make Eur the first
climate neutral part of this planet thru sectoral policies => taking action thru a huge amount of
legislation, but means that there is a problem with enforcement and implementation of the legislation
in the EU and in domestic national law
• a legislative pause would be useful to make sure every MS that has transposed the EU legislation in
their domestic legislation can finally apply, survey the application and enforce it, but isn’t going to
happen
Questions to ask yourself:
the 1st one: is the concerned body that wants to adapt legislation competent to do so?
Is the EU really competent to take environmental, energy and climate legislation?
Is there a legal basis for the adoption of those regulations and directives? Bcs every legislation has to be based
on an article of the TFEU
We will look at the legislation in the TEU, TFEU and ECHR about environment, energy and climate
Sustainable development = going for an economic growth model where we try to reconcile: environmental
protection, eco prosperity and social protection
ð a balanced development of environmental, eco and social
TEU
What does TEU say about sustainable development, climate, environment and energy
Art. 2: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule
of law and respect for human rights, including the rights of persons belonging to minorities. These values are
common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity
and equality between women and men prevail.’
> ‘the rule of law and respect for HR’ -> HR is an important issue for sustainability bcs a lot of court cases
deal with the interaction between environmental/climate protection and protection of HR
> e.g. Swiss case in which ECtHR stated that the protection of climate can be achieved through
protection of HR
> but is there a hierarchy between HR legislation and EU legislation? Not decided on in the Swiss case
Art. 3.3: ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe
based on balanced economic growth and price stability, a highly competitive social market economy, aiming at
full employment and social progress, and a high level of protection and improvement of the quality of the
environment. It shall promote scientific and technological advance.’
> ‘internal market which shall work for the sustainable … quality of the environment’ = notion of
sustainable development
> Section 3 mentions what the Union will do within its territory, section 5 about what will EU do outside
of its territory
3
,Art. 4.3: ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the
obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which
could jeopardise the attainment of the Union's objectives.’
> Important from the energy perspective -> built on solidarity
> ‘… sincere cooperation …’ -> security of supply of the individual energy markets in hopes to end with
1 integrated energy market
Art. 5:
‘1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is
governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon
it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon
the Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall
act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member
States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of
the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the
application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with
the principle of subsidiarity in accordance with the procedure set out in that Protocol.
4. Under the principle of proportionality, the content and form of Union action shall not exceed what is
necessary to achieve the objectives of the Treaties.
The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the
application of the principles of subsidiarity and proportionality.’
> Deals with one of the key issues of EU Law: EU is only competent when made explicitly competent by
a treaty basis for a specific matter (= the principle of conferral)
> And principle of proportionality (union can act but only if proportionate = must really pinpoint the
problem it wants to solve) and principle of subsidiarity (check if a topic can better be dealt with at eu
level than at MS level: we take action at EU level if this is better than at a national level) who limits the
competence given to the EU
Art. 6:
‘1. The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the
European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the
same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the
Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions
in Title VII of the Charter governing its interpretation and application and with due regard to the explanations
referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental
Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms and as they result from the constitutional traditions common to the Member States,
shall constitute general principles of the Union's law.’
> HR again
> Final sentence of section 2: such accession to the Eur convention shall not affect the EU’s
competences as defined in the treaties
4
,Most articles are looking at the EU in its internal effects
But EU measures apply in each MS, but exceptions e.g. rules on the Euro currency, the Schengen area (some
countries are opting out, but sometimes enhanced cooperation: some states go ahead even tho some don’t
want to follow: art 20)
Enhanced cooperation in environmental field e.g. an energy tax but in tax matters unanimity is necessary
Art. 21: ‘1. The Union's action on the international scene shall be guided by the principles which have inspired its
own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the
rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human
dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and
international law.
The Union shall seek to develop relations and build partnerships with third countries, and inter national,
regional or global organisations which share the principles referred to in the first subparagraph. It shall
promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of
cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of inter national
law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the
purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with
the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries,
with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive
abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the
sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global
governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the
development and implementation of the different areas of the Union's external action covered by this Title and
by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other
policies.
The Union shall ensure consistency between the different areas of its external action and between these and its
other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign
Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.’
> common foreign and security policy
> Section 2 d and f: sustainable development and environmental protection
> For the international policy how central sustainable development is, but no enforcement mechanisms
> Only Kyoto protocol had an enforcement mechanism and was killed of bcs of that
TFEU
Article 2:
‘1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate
and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the
Union or for the implementation of Union acts.
5
,2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the
Union and the Member States may legislate and adopt legally binding acts in that area. The Member States
shall exercise their competence to the extent that the Union has not exercised its competence. The Member
States shall again exercise their competence to the extent that the Union has decided to cease exercising its
competence.’
Article 3.1: ‘The Union shall have exclusive competence in the following areas …’
Article 4:
‘1. The Union shall share competence with the Member States where the Treaties confer on it a competence
which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas …
(e) environment; (i) energy; (k) common safety concerns in public health matters, for the aspects defined in this
Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out
activities, in particular to define and implement programmes; however, the exercise of that competence shall
not result in Member States being prevented from exercising theirs.’
Article 6: ‘The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be …
(a) protection and improvement of human health; (f) civil protection;’
Art. 2, 3, 4 and 6: extinction between exclusive and shared competences
> Exclusive = no legislative powers for the MS
o Topic of the exclusive competence has to be thoroughly described
> Shared competence = legislation of the MS and EU together
o Art. 4: shared competences section e environment, section i energy
> 4.3 pollution is becoming a problem in space (space waste) => has to be regulated
> EU has to invest in research, technology and innovation
> 4 k: public health matters closely connected to environmental field
> 6: protection and improvement of health and in f: civil protection -> also related bcs hurricanes,
earthquakes and floodings related to climate change -> but here competence of the union is limited
Art 9: ‘In defining and implementing its policies and activities, the Union shall take into account requirements
linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight
against social exclusion, and a high level of education, training and protection of human health.’
> =>if develops policy, has to take into account …
Art 11: ‘Environmental protection requirements must be integrated into the definition and implementation of
the Union's policies and activities, in particular with a view to promoting sustainable development. Consumer
protection requirements shall be taken into account in defining and implementing other Union policies and
activities.’
> Principle originating in environmental title of the treaty (Title XX) but so important that promoted to
opening articles of the treaty
> = integration principle: before measure is proposed/adopted there must be an analysis of the
consequences of the measures
> But EU doesn’t do an environmental check before proposing new legislation even tho on paper they
say they do -> other issues are esteemed to be more important
> So, what is the legal value of art. 11? Only if there is a manifest disregard to art 11
13: ‘In formulating and implementing the Union's … , the Union and the Member States shall, since animals are
sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or
administrative provisions and customs of the Member States relating in particular to religious rites, cultural
traditions and regional heritage.’
6
, > = welfare of animals
> Some countries gave/want to give legal personality to animals so they can advocate for themselves
> Treaty: animals are sensitive beings (so no objects)
TITLE XX: THE ENVIRONMENT
191:
‘1.Union policy on the environment shall contribute to pursuit of the following objectives:
- preserving, protecting and improving the quality of the environment,
- protecting human health,
- prudent and rational utilisation of natural resources,
- promoting measures at international level to deal with regional or worldwide environmental problems, and in
particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of
situations in the various regions of the Union. It shall be based on the precautionary principle and on the
principles that preventive action should be taken, that environmental damage should as a priority be rectified at
source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where
appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic
environmental reasons, subject to a procedure of inspection by the Union.
3. In preparing its policy on the environment, the Union shall take account of:
— available scientific and technical data,
— environmental conditions in the various regions of the Union,
— the potential benefits and costs of action or lack of action,
— the economic and social development of the Union as a whole and the balanced development of its
regions.
4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third
countries and with the competent international organisations. The arrangements for Union cooperation may be
the subject of agreements between the Union and the third parties concerned.
The previous subparagraph shall be without prejudice to Member States' competence to negotiate in
international bodies and to conclude international agreements.’
> ‘in particular combatting climate change’ -> only place in EU treaties where they mention the notion
of climate change
> EU is leader in climate change protection since USA doesn’t anymore => EU has competence in climate
change
> ‘shall take into account the diverse regions of the Union’ most important notion: aim
> ‘shall be based on …’ = principles at the bases of the regulations the EU is going to adopt BUT
> BUT these principles don’t allow you to go to court for something that is not in accordance to those
principles
> Only marginal violation will lead to action
> But those principles have obtained a certain but limited legal value
> Precautionary principle allows government to take action against situations which aren’t proven to
cause damage but there’s a strong suspicion
> Limitations in section 3: breaks installed to lower the level of environmental protection ->
environmental quality is quite different in different MS
> The limitations are aiming at developing a policy that is acceptable for some MS
> Challenge = find a balance between the front running MS and the lagging MS
> ‘available scientific and technical data’ is still a problem for the MS -> a challenge for the union is to
have comparable data from the MS and in order to do so there’s a specific agency (Eur environmental
7
, agency) responsible to connect this data, even some specific networks collection reliable and
comparable data
192: ‘1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure
and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what
action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice
to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after
consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions,
shall adopt:
a. provisions primarily of a fiscal nature;
b. measures affecting:
— town and country planning,
— quantitative management of water resources or affecting, directly or indirectly, the availability of
those resources,
— land use, with the exception of waste management;
c. measures significantly affecting a Member State's choice between different energy sources and the
general structure of its energy supply.
The Council, acting unanimously on a proposal from the Commission and after consulting the European
Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary
legislative procedure applicable to the matters referred to in the first subparagraph.
3. General action programmes setting out priority objectives to be attained shall be adopted by the European
Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting
the Economic and Social Committee and the Committee of the Regions.
The measures necessary for the implementation of these programmes shall be adopted under the terms of
paragraph 1 or 2, as the case may be.
4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and
implement the environment policy.’
> = adoption of real environmental protection measures (not internal market measures with an
environmental spinoff) -> 1st legal basis to adopt environmental protection measures, 2nd treaty basis
is art. 114
> Distinction between environmental protection measures which we adopt according to the ordinary
legislative procedure
o = commission proposes, parliament reflects and take in a position and council of MS come to
a position if agreement on the text it has to be adopted in parliament with 50+1 majority but
in council a qualified majority
BUT art 192.2: in a number of cases, we go for special legislative procedure: commission proposes but
parliament has no decision right on the measure but can only give advice so council decides with
unanimity on the proposed measure, but council can decide with unanimity that they won't decide
with unanimity (= paserelle) but almost never happens!
> 192.4 enormous consequences -> MS must finance all the investments
o Big problem for many MS => they can't pay for it so don’t take measures
> 192.3 environmental action programs by the Union
o Not legally binding by itself, but always an annex
o e.g. 8th environmental action program (decision 2022/591)
->should be fulfilled by 2030
• Art. 1: we will try to realise through this environmental action program the UN sustainable
development goals, also aiming at realizing the principles of the different international
environmental treaties to which the union has signed up and also aiming at realizing the goals
of the green deal (= an economic integration policy which should lead to a climate neutral
society)
8
