How Much Room For EU Member States Under The Environmental Guarantee

How Much Room For EU Member States Under The Environmental Guarantee (Article 193 TFEU)? Presented by: Prof. Dr. Leonie Reins Date: 29 June 2023 Structure Of The Lecture - Aim of today: • Explain background, use and context of the environmental guarantee • Shed light on the interpretation of the environmental guarantee by the CJEU • Examine its use in EU secondary legislation - Introduction: (historical) background and context - Interpretation by the CJEU - The environmental guarantee in EU legislative instruments - Conclusion and debate Introduction: (historical) background and context TITLE XX ENVIRONMENT Article 191 (ex Article 174 TEC 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 utilization 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. Article 193 (ex-Article 176 TEC) The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission. CHAPTER 3 APPROXIMATION OF LAWS 5. Moreover, without prejudice to paragraph 4, if, after the adoption of a harmonization measure by the European Parliament and the Council, by the Council or by the Commission, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonization measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing them. Interpretation by the CJEU Article 193 (ex-Article 176 TEC) The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission. - "more stringent measures" • Include, for example  Possibility of extending the scope of application of a particular Union standard  Passing of stricter thresholds  Establishment of more stringent procedural requirements Establishment of a list of additional substances or activities to be regulated;  Removal of exceptions established under an EU measure and the setting of earlier time limits. - A MORE STRINGENT PROTECTIVE MEASURE • Must, seek to achieve the same environmental protection objective as that pursued by the measure adopted at Union level (Case C-43/14, ŠKO-ENERGO, ECLI:EU:C:2015:120)  Measures cannot be less ambitious than the Union measure or "change arrangements for implementing secondary law". (Case C-194/01, Commission v Austria, ECLI: EU:C:2004:248, para. 39.) • "Cannot release Member States from the obligation to transpose a Directive" (Case C-322/00, Commission v Netherlands, ECLI: EU:C:2003:532) - Case C-6/03, Deponiezweckverband Eiterköpfe, ECLI: EU:C:2005:222, paras. 57-64 • The Court held that:  "It is clear from the broad logic of Article 176 EC that, in adopting stricter measures, Member States still exercise powers governed by Community law, given that such measures must in any case be compatible with the Treaty. Nevertheless, it falls to the Member States to define the extent of the protection to be achieved".  Para. 61 (emphasis bold added). - Case C-284/95, Safety Hi-Tech, ECLI:EU:C:1998:352 • The Court held that:  "Whilst it is undisputed that Article 130r(2) of the Treaty requires Community policy in environmental matters to aim for a high level of protection, such a level of protection, to be compatible with that provision, does not necessarily have to be the highest that is technically possible."  Para. 49 (emphasis bold added). - Case C-318/98, Fornasar and Others, ECLI: EU:C:2000:337 • The Court held that:  "Entitles the Member States to classify any other waste which a Member State considers to display one of the properties listed in Annex III to that directive as hazardous. Thus, such waste is considered hazardous only in the territory of the Member States which have adopted such a classification."  Para. 48 (emphasis bold added). - Case C-43/14, ŠKO-Energo, ECLI: EU:C:2015:120 • The Court held that:  "[A] measure, which, as indicated in the decision to refer, was intended to obtain additional revenue for operators of photovoltaic power stations, pursues objectives different from those of Directive 2003/87. Consequently, it cannot be regarded as a more stringent protective measure for the purposes of Article 193 TFEU."  Para. 25 - Case C-281/11, Commission v Poland, ECLI: EU:C:2013:855 • The Court held that:  "It does not appear that Articles 7 and 8(2) of Directive 2009/41 have, even in part, been transposed into national law, so that a comparison of the provisions of that directive to those constituting more stringent protection measures may not be carried out. Accordingly, the application of Article 193 TFEU cannot be relied on in the present case."  Para. 115 (emphasis bold added). - COMPATIBILITY OF THE "MORE STRINGENT PROTECTIVE MEASURE" WITH THE TREATIES • Case 203/96, Dusseldorp and Others, ECLI:EU:C:1998:316, paras. 35- 50  First indication of the restrictive nature of the environmental guarantee • Confirmed by the Court in Case C-510/99, Tridon, ECLI: EU:C:2001:559 • Case C-129/16, Túrkevei Tejtermelő Kft., ECLI:EU:C:2017:547  Measure must not only comply with the Treaties, but also with "the general principles of EU law".  National measures are "appropriate for the purpose of contributing to the attainment of the objective of more stringent protection and that the methods for determining the amount of the fine do not go beyond hat is necessary to attain that objective". • Do fundamental rights also need to be respected in the context of the use of the environmental guarantees?  AG Opinion Kokott, Case C-60/18, Tallinna Vesi, ECLI:EU:C:2018:969 - NOTIFICATION OF THE MORE STRINGENT PROTECTIVE MEASURE TO THE COMMISSION • Case C-2/10, Azienda Agro-Zootecnica Franchini and Eolica di Altamura, ECLI: EU:C:201:502  The Court held that neither the wording nor the purpose of Article 193 TFEU o "[...] provides any support for the view that failure by the Member States to comply with their notification obligation under Article 193 TFEU in itself renders unlawful the more stringent protective measures thus adopted." o para. 53. Quick Recap - The action pursued... • Must be in accordance with the Treaties  Hence also in accordance with Articles 34-36 TFEU on the prohibition of quantitative restrictions between Member State o Respect the rules regarding the free movement of goods and trade, and cannot constitute an arbitrary restriction on trade - Must also respect the nature of the harmonization objective pursued through secondary legislation • Cannot be different and "must consist in the extension of the harmonization rule by pursuing a greater level of [environmental] protection" (de Sadeleer, referring to Kraemer (2007)) The Environmental Guarantee In EU Legislative Instruments - Can/ May a Directive prohibit EU Member States from adopting more stringent protective measures? Article 193 (ex-Article 176 TEC) The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission. - "There is a clear risk that the functioning of the internal market is undermined if the Member States are allowed to apply more stringent measures in all situations" (Langlet and Mahmoudi) - The CJEU's "jurisprudence on this matter is inconclusive and unclear" (Holwerda) Conclusion - The wording of Article 193 TFEU may, at first sight suggest that there is plenty of room for MS for more stringent protective action • In practice it has to ensure:  That such a measure seeks to attain the same objective as that pursued by the relevant EU legal instrument  It may not violate the provisions of the EU legal instrument in question  Nor the Treaties or any general principles of EU law • The Court is legalistic or restrictive rather than activist • Increasing formalization of the EG in secondary law