Article 191 TFEU
Article 191 TFEU
Abstract and Keywords
Article 191(1) TFEU provides the objectives of the EU’s environmental policy. These are the preservation, protection, and improvement of the quality of the environment, the protection of human health, the prudent and rational utilization of natural resources, and, in an external dimension, the promotion of international measures to deal with environmental problems. The specific reference to climate was added by the ToL. Not mentioned in the Environment Title, but separately in Article 13 TFEU, the EU, furthermore, expresses a commitment to animal welfare, ‘since animals are sentient beings’, which one could equally consider an aspect of environmental policy.
Keywords: Aarhus Convention, environmental information, environmental policy cooperation, environmental protection, international environmental agreements, international environmental law, polluter pays, subsidiarity
(ex Article 174 EC)
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.
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.
A. General remarks
B. Objectives (para 1)
1. The horizontal environmental commitment
3. High level of protection
C. Guiding principles (para 2)
4. Rectification at source
5. Polluter pays
D. Relevant criteria (para 3)
1. The external competence and its limits
2. Aarhus and access to justice
A. General remarks
1 Article 191(1) TFEU provides the objectives of the EU’s environmental policy. These are the preservation, protection, and improvement of the quality of the environment, the protection of human health, the prudent and rational utilization of natural resources, and, in an external dimension, the promotion of international measures to deal with environmental problems. The specific reference to climate was added by the ToL. Not mentioned in the Environment Title, but separately in Article 13 TFEU, the EU, furthermore, expresses a commitment to animal welfare, ‘since animals are sentient beings’, which one could equally consider an aspect of environmental policy.
2 In addition, the Treaties contain many other references to the environment and the EU’s aims and responsibilities in that context. The TEU’s preamble declares the commitment of the MS ‘to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection’; Article 3(3) TEU specifies that one of the general objectives of the EU is to fix ‘a high level of protection and improvement of the environment’; and Article 37 CFR lays down that ‘a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’.
B. Objectives (para 1)
1. The horizontal environmental commitment
3 This latter ‘mainstreaming’ or ‘integration’ obligation is repeated in Article 11 TFEU, which stipulates that ‘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’.1 Some specific Treaty provisions in other policy areas echo this horizontal commitment to the environment, such as Article 21 TEU on the EU’s external action, Article 114(3) TFEU on the internal market and Article 194 TFEU on energy. This illustrates the cross-cutting nature of environmental policy, which furthermore could be considered an aspect of public health policy, consumer protection, agriculture and tourism, and which intersects with areas such as transport and trade. Some of these other provisions can serve as a vehicle for the pursuit of environmental policy by the EU, whereas others may pose a challenge due to potentially conflicting interests. The area that features the most complex interaction with the environment is probably the internal market,2 as it can serve both as a catalyst and as a dampener on the pursuit of environmental objectives.
4 The ECJ has referred to the integration clause to support its position that the fact that environmental policy constitutes a part of a specific EU measure does not mean that it (p.1518) should necessarily be based on the Environment Title.3 To what extent the EU institutions are bound by this commitment is an open question. The literature generally considers that ‘only in very exceptional cases will a measure be susceptible to annulment (or being declared invalid) because certain environmental objectives seem not to have been taken sufficiently into account’.4 It may be, however, that in light of the Commission’s clear commitment to conduct impact assessments before proposing EU legislation the ECJ will start policing the various horizontal commitments set out in the Treaties (such as, in addition to the environment, in the areas of social policy and gender equality) more strictly in a procedural sense.5 The legislator clearly possesses a large amount of discretion concerning substantive decision making, but it may be that the case law will move in the direction of requiring that it should be shown that the effects of the environment were at least duly taken into account in the decision-making process.
5 The EU’s environmental objectives are not necessarily limited to cross-border issues. Also purely local environmental problems could, on the reading of Article 191(1) TFEU, be the subject of EU action, for instance, ‘to preserve, protect and improve the quality of the environment’. Such measures would, however, have to be scrutinized in light of the subsidiarity principle of Article 5(3) EU.6 It would have to be shown in such a case that even though the environmental issue in question is local, it cannot be sufficiently addressed by the respective MS, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. As the environment, by its very nature, is an inter-connected system that does not respect borders, as well as a collective resource and shared heritage of mankind, it could be argued that the subsidiarity principle should be relatively easily satisfied in this area. The EU legislator has previously considered, without MS opposition, that the quality of bathing water, drinking water, and urban waste water treatment merited Union-level intervention, even though the cross-border dimension of these issues is arguably limited.7 A proposal on the keeping of animals in zoos, however, was considered a matter for the MS and was withdrawn.8 Subsequently, a modified directive on the treatment of wild animals in zoos, without the detailed provisions on accommodation and care of animals, was adopted.9
3. High level of protection
6 While EU action is subject to the principles of subsidiarity and proportionality laid down in Article 5 TEU, this should not translate into low ambition when it comes to the (p.1519) environment. Instead, in accordance with Article 191(2) TFEU, the EU ‘shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union’.10 This could be considered to imply that the minimum harmonization measures that the EU may adopt on the basis of Article 192 TFEU should not be set at the level of the lowest common denominator in the EU, but instead should aim higher—although the ECJ has explicitly confirmed in Bettani that the EU does not have to take the highest level of protection as its standard either.11 In any event, in light of the minimum harmonization principle enshrined in Article 193 TFEU, MS may go beyond the standards of protection provided by the EU environmental measures.12 In that sense, the similarly worded stipulation found in Article 114(3) TFEU on the internal market is potentially more important, in that measures adopted on this basis may, through full harmonization of a particular issue, preclude supplemental MS action, and thus may set a ceiling for the protection of the environment in that specific context. In such a case, the requirement that the level of protection of the environment incorporated in the EU measure in question should be a high one, is of crucial importance.
C. Guiding principles (para 2)
7 Article 191(2) TFEU provides a number of important principles that underpin the EU’s environmental mandate, some of which are also found in other areas of EU law such as the precautionary principle, and some of which are unique to environmental policy, such as the polluter pays principle.
8 The reference to the precautionary principle was added by the MT, and draws inspiration from the Vorsorgeprinzip known in the German legal order13 and from the Rio Principles that were adopted at the ground-breaking 1992 UN Conference on Environment and Development in Rio de Janeiro.14 It applies across EU law generally, and most specifically in the areas of public health and the environment, but the Treaties leave the principle as such undefined.15 The GC has held that ‘the precautionary principle can be defined as a general principle of Community law requiring the competent authorities to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests. …’16. According to the ECJ, it follows from the precautionary principle that ‘where there is uncertainty as to the existence or extent of risks to (p.1520) human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent’17.
9 As can also be seen from the GC’s statement, the main value of the principle lies in its influence on the interaction between the internal market and the interest of environmental protection, where it allows a restriction of the former (and in certain situations may require the competent authorities to impose such a restriction) also for the sake of yet unproven but reasonably expected risks to the environment. The crucial question is where the limits of the precautionary principle lie, since under a too broad interpretation and application of precaution, the internal market could become paralysed by references to vague and unsubstantiated claims of threats posed by certain products or services. Furthermore, as a more general point, risks may be associated as much with regulation as with its absence.18
10 The ECJ has held that there is a need for a risk assessment in all cases.19 If, however, it proves ‘impossible to carry out as full a risk assessment as possible in the particular circumstances of a given case because of the inadequate nature of the available scientific data’, restrictive measures may be taken where there is ‘specific evidence which, without precluding scientific uncertainty, makes it possible reasonably to conclude on the basis of the most reliable scientific evidence available and the most recent results of international research that the implementation of those measures is necessary in order to avoid novel foods which pose potential risks to human health being offered on the market’.20 A difficult case-by-case balancing exercise is thus involved, and the precautionary principle does not provide a carte blanche for the adoption of restrictive measures by national authorities.
11 There is a tight conceptual relationship between the precautionary principle and the prevention principle. The latter follows from Article 191(2) TFEU, where it states that EU action shall be based ‘on the principle that preventive action should be taken’. Some authors have argued that the prevention principles does not have a self-standing value next to the precautionary principle.21 While the idea that damage is rather to be prevented than to be cured (prevention) is of course closely interlinked with the idea that action can be taken without the need for the possible risks to the environment to actually materialize (precaution), it could nevertheless be said that the two principles fulfil slightly different roles. The preventive principle serves to instil a duty of proactive and anticipative policy on the EU authorities, not only to deal with a problem after it has caused damage but rather to avoid that damage in the first place, since this is environmentally, and often also economically, most satisfactory.22 Taken by itself, it does not allow for conclusions as to the need for evidence to prove that damage will actually occur if nothing is done. That is precisely where the precautionary principle provides its added value, serving to justify anticipative restrictive measures in the face of scientific uncertainty as to whether a measure, product, or service will result in damage.
(p.1521) 12 The prevention principle is expressed in much of contemporary EU environmental regulation, and anchored procedurally by the requirements of an Environmental Impact Assessment (EIA). The latter ensures that the environmental implications of decisions are taken into account before the decisions are made. The EIA Directive 2011/92/EU provides for environmental assessment for individual projects, such as dams, motorways, airports, or factories.23 The Strategic Environmental Assessment Directive 2001/42/EC provides the same for public plans or programmes.24 The Court has held that while plans adopted in breach of such an impact assessment requirement are to be annulled, a national court was entitled to temporarily maintain the legal effects of such a plan, if this meant maintaining a situation that was more beneficial to the environment than annulling the plan.25
4. Rectification at source
13 Another closely related principle guiding EU action in this area is that ‘environmental damage should as a priority be rectified at source’.26 Like the prevention and the precaution principle, it reflects the idea that one should deal with environmental problems sooner rather than later. The principle also contains an element of responsibility allocation. As such, it should be noted that the principle can be used to contest environmental measures, where an individual considers that this allocation is incorrectly done. In such circumstances, the ECJ will often assess the source principle in the context of the proportionality principle. For instance, in a case concerning the validity of Directive 91/676/EEC on protection of waters against pollution caused by nitrates from agricultural sources, the applicant argued that the designation as ‘vulnerable zones’ of agricultural land that drains into waters exceeding the nitrate threshold, even though that land accounts for only part of the concentration of nitrates, as well as the establishment of an action programme, which imposes on farmers alone responsibility for ensuring that the threshold is not exceeded, was disproportionate and in conflict with the source principle.27 The ECJ upheld the Directive, but reminded the national court to consider whether the proportionality principle had been respected by the MS in question by reference to the specific implementation of the Directive in that MS.28
5. Polluter pays
14 This latter responsibility-allocation dimension of the source principle is also part of the polluter pays principle, which Article 191(2) designates as the final principle upon which Union environmental action should be based. It is an economic approach to environmental protection,29 and conceived to deal with a market failure. In the words of AG Jacobs:
pollution is perhaps the most important example of what economists call a negative externality, that is a loss (normally to society) which is not priced. In the absence of State intervention a producer of chemical products causing air pollution does not pay for that pollution. He can therefore ignore the costs to society in deciding how much to produce and at what price to sell his products. Pursuant to the polluter pays principle the costs of measures to deal with pollution should be borne not by society through general taxation but by the polluter who causes the pollution. The costs (p.1522) associated with the protection of the environment should be included in a firm’s production costs (internalisation of costs).30
15 Like with all the other principles, there is an element of preventive logic in play, as the assumption is that the polluter will do his or her best to prevent or limit pollution that he or she will otherwise have to pay for. However, this does not exclude the scenario that the price of avoiding or cleaning up pollution is lower than the economic gain for the operator, and from an environmental perspective the overall policy emphasis should therefore arguably still lie on a more direct and absolute prevention of damage. The polluter pays principle has been invoked by individuals to contest the validity of environmental regulation, but the Court has been careful not to interpret the principle in a way so as to pose too high hurdles on the legislator.31 The principle has been given further effect in the Environmental Liability Directive,32 which Krämer considers ‘a rather sad illustration on the application of the polluter pays principle’, in that contrary to the original Commission proposal, the eventually adopted Directive provides that where the polluter cannot be identified, there is no obligation on the MS authorities to restore the environment.33 On the other hand, the ECJ has interpreted the Directive in a extensive manner, e.g. allowing a presumption that there is a relation between certain operators and a proven pollution, because the operator’s installations are located close to the polluted area.34
D. Relevant criteria (para 3)
16 Article 191(3) TFEU lists a number of criteria that the EU should take into account when taking action on the basis of the Environment Title. In particular, it is to consider: (a)available scientific and technical data; (b) environmental conditions in the various regions of the Union; (c) the potential benefits and costs of action or lack of action; and (d) the economic and social development of the Union as a whole and the balanced development of its regions. The second and fourth criteria correspond to the stipulation in Article 191(2) that the EU is to take account of the diversity of situations in the various regions of the Union.
(p.1523) 17 The references to regional diversity are a recognition that the EU’s environment is not uniform and that environmental regulation may need to make certain relevant differentiations in order to be effective. Furthermore, they acknowledge that the socio-economic variation across the EU should also be recognized in the context of environmental protection. Account may be taken of ‘the routine variation in the responsibilities of Member States, often on a temporary basis, in EU environmental legislation, for example allowing particular Member States more time or more generous conditions for implementation’,35 in order to take due account of the (differential) economic impact that such measures may have.
18 Acknowledging the importance of regional diversity also argues for the use of Framework Directives that can allow more discretion on the part of the MS in defining not only the implementation mechanisms but also the very aims to be achieved.36 Article 192(5) TFEU moreover provides for concrete measures to financially assist MS in certain situations and under certain conditions in the implementation of environmental measures, as well as the possibility to provide for temporary derogations.
19 The need to take account of scientific data and of the potential benefits and costs of action or lack of action reflects a technical approach to environmental governance, and a certain tendency to de-politicize law and policy making in this area by replacing it with expertise in decision making.37 However, the interpretation and putting into effect of scientific data, no matter how objective their formulation, is highly political and the results can vary depending on political viewpoints. The EU Better Regulation Agenda, which imposes the requirement of an impact assessment on all new EU legislation, and the related REFIT programme, which scrutinizes the existing EU acquis for its regulatory burden, rely heavily on such economic cost–benefit analysis.38 The appropriateness thereof has become hotly contested in areas of public interest protection such as the environment, testified by the creation of the Better Regulation Watchdog, consisting of sixty-four NGOs concerned about deregulation.39 Many have deplored the influence of cost–benefit methodology on the political environment:
where discussion on the advantages and disadvantages of EU environmental measures has been reduced, de facto, to the economic costs and benefits of a measure. And since economists have, up until now, not yet developed a standardized method of how to calculate in monetary terms the environmental benefits of a measure, this debate is all too often reduced to the question of how much the envisaged measure will cost trade and industry.40
E. External action (para 4)
1. The external competence and its limits
20 The fourth paragraph of Article 191 TFEU lays down the possibility, and the imperative, for the EU to cooperate with third countries and international organizations in the area (p.1524) of environmental protection. As such, environment is one of the policy areas where the Treaties provide the EU with explicit external competence. Curiously, as Klamert points out, despite this explicit conferral in Article 191(4), and the absence of a specific external dimension in Article 192 TFEU, international agreements concluded on the basis of Article 191(4) TFEU are the exception, while more than thirty international agreements have been concluded based on Article 192 TFEU.41 In the Lesoochranárske case, the ECJ held that ‘in the field of environmental protection, the European Union has explicit external competence pursuant to Article [192 TFEU], read in conjunction with Article [191(4) TFEU]’.42
21 This external competence is shared and so, in principle, parallel external action by the MS and the EU is allowed, and when both the EU and the MS become party to an international environmental agreement, this will take the form of a ‘mixed agreement’. Since the 1980s particularly, the EU has continuously developed and positioned itself as a global environmental leader.43 It has, for instance, engaged in the Waste/Chemical Treaties,44the Convention on Biological Diversity (1992) and its Protocols, the United Nations Framework Convention on Climate Change (1992), the Kyoto Protocol (1997), the Aarhus Convention (1998), and the Paris Agreement (2015). International agreements concluded by the EU are binding on the Institutions and the MS (Article 216 TFEU), and take precedence over secondary legislation.45 This means that the validity of an EU legislative measure can be contested on the basis that it breaches an international environmental obligation, which potentially has more force than the various principles and objectives of environmental protection that have already been examined. The conditions for such judicial review are, however, that the nature and broad logic of the agreement allow for such review, and that the provision in question is sufficiently unconditional and precise as to its content.46
2. Aarhus and access to justice
22 Of special significance is the Aarhus Convention on access to information, public participation in decision making, and access to justice in environmental matters, to which the EU as well as all the EU MS are signatories. Its powerful and transformative potential for the protection of the environment lies in its provision for access to justice for members of the public ‘having a sufficient interest’ including environmental organizations. The Aarhus Convention was partially implemented in the EU legal order through secondary legislation.47
23 On the one hand, EU law, as interpreted by the ECJ, has served as a catalyst and enforcer of access to justice for environmental NGO’s under the Aarhus Convention on the national level. In the Trianel ruling, the Court held that German procedural rules that required NGOs to prove, in a claim based on an alleged violation of the EIA Directive, that they were relying on a provision that abstractly intended to protect individual rights, (p.1525) were incompatible with the access to justice requirement of that Directive.48 In the Brown Bear ruling,49 where the EIA Directive did not apply, the Court looked at the direct effect of Article 9(3) of the Aarhus Convention on access of the members of the public to review procedures to challenge the legality of decisions affecting the environment. The ECJ concluded that while the provision does not contain a clear and precise obligation capable of directly regulating the legal position of individuals, national courts are bound to interpret national law as far as possible to ensure effective judicial protection in the field of EU environmental law. Both cases could significantly impact the rules for environmental NGOs in various MS.50
24 On the other hand, the EU’s own rules on locus standi have been the subject of criticism for being overly restrictive, preventing environmental NGOs from effectively challenging EU legislation for breach of environmental norms.51 According to the Plaumann judgment, to be able to challenge an EU measure, individuals have to show that the measure affects them ‘by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually’.52 In Stichting Greenpeace the ECJ held that the Plaumann test ‘remains applicable whatever the nature, economic or otherwise, of those of the applicants’ interests which are affected’.53 Regulation 1367/2006, giving effect to the Aarhus Convention in relation to acts adopted by EU institutions does not change anything in this regard, as one of the conditions for environmental NGOs to instigate proceedings is to do so ‘in accordance with the relevant provisions of the Treaty’, and thus the EU’s general locus standi rules.
25 As Eliantonio notes, this interpretation by the ECJ of Article 263 TFEU ‘does not seem to comply with the requirements of Article 9 of the Aarhus Convention, since the consequences of applying the Plaumann test to environmental issues is that in effect no NGO is ever able to challenge an environmental measure before the European Courts’.54 The Compliance Committee of the Aarhus Convention has indeed indicated that the EU standing requirements are ‘too strict to meet the criteria of the Convention’.55 The ECJ has consistently justified its approach on the basis that the validity of EU acts can be contested by individuals in national courts, which can then address the issue to the ECJ through the preliminary reference procedure. The Aarhus Compliance Committee, however, opined that the indirect challenge of EU measures before national courts ‘cannot be a basis for generally denying member of the public access of the EU Courts to challenge decisions, acts and omissions by EU institutions and bodies’ and that the system of preliminary ruling does not compensate for the overly restrictive jurisprudence of the European courts on standing.56
(1) See further Dhondt, Integration (see Title biblio), 84 and Marín Durán and Morgera, Environmental Integration (see Title biblio).
(2) De Sadeleer, EU Environmental Law (see Title biblio).
(3) Case C-62/88, Greece v Council, EU:C:1990:153, para 20: ‘the principle whereby all Community measures must satisfy the requirements of environmental protection, implies that a Community measure cannot be part of Community action on environmental matters merely because it takes account of those requirements’.
(4) Jans and Vedder, European Environmental Law (see Title biblio), 26–7
(5) See, in relation to the subsidiarity principle, Case C-58/08, Vodafone, EU:C:2010:321.
(6) See, in general, Nicolas de Sadeleer, ‘Principle of Subsidiarity and the EU Environmental Policy’  50 JCMS 72.
(7) Directive 2006/7/EC of the EP and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC  OJ L64/37; Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption  OJ L330/32; and Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment  OJ L135/40. The original directives were, however, revised in order to ‘simplify’ them, partially in light of the subsidiarity principle.
(8)  OJ C241/14.
(9) Directive 1999/22/EC relating to the keeping of wild animals in zoos  OJ L94/24.
(10) Emphasis added.
(11) In Case C-341/95, Bettani, para 47, the ECJ 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’.
(12) See also Case C-341/95, Bettani, para 47.
(13) See Birger Arndt, Das Vorsorgeprinzip im EU-Recht (Mohr Siebeck 2009).
(14) Principle 15 provides: ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’. On the precautionary principle in general, see Giandomenico Majone, ‘The Precautionary Principle and its Policy Implications’  40 JCMS, 89.
(15) See also European Commission, Communication on the precautionary principle, COM/2000/0001final.
(16) Joined Cases T-74/00 & T-76/00, Artegodan, EU:T:2002:283, para 184.
(17) See Case C-157/96, National Farmers’ Union, para 63; Case C-180/96, UK v Commission, EU:C:1998:192, para 99.
(18) Sunstein, Risk and Reason (see Title biblio), 39; Lee, EU Environmental Law (see Title biblio), 6.
(19) See Case C-236/01, Monsanto.
(20) Case C-236/01, Monsanto, paras 112–13. See also Case T-13/99, Pfizer Animal Health, EU:T:2002:209 and Case T-70/99, Alpharma, EU:T:2002:210.
(21) Krämer, EU Environmental Law (see Title biblio), 24.
(22) Lee, EU Environmental Law, 12.
(23) Directive 2011/92/EU of the EP and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment.
(24) Directive 2001/42/EC of the EP and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, pp 30–7.
(25) Case C-41/11, Inter-Environnement Wallonie et Terre wallonne, EU:C:2012:103.
(26) Emphasis added.
(27) Case C-293/97, Standley, EU:C:1999:215, para 53.
(28) Case C-293/97, Standley, para 50.
(29) Lee, EU Environmental Law, 13.
(30) Opinion of AG Jacobs in Case C-126/01, GEMO, EU:C:2002:273, para 66.
(31) Lee, EU Environmental Law, 13; Case C-254/08, Futura Immobiliare, EU:C:2009:479; Case C-188/07, Commune de Mesquer, EU:C:2008:359.
(32) Directive 2004/35/EC of the EP and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage  OJ L143/56.
(33) Recital 13 of the Directive provides: ‘Not all forms of environmental damage can be remedied by means of the liability mechanism. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors.’ Article 6 provides: ‘If the operator fails to comply with the obligations laid down in paragraph 1 or 2(b), (c) or (d), cannot be identified or is not required to bear the costs under this Directive, the competent authority may take these measures itself, as a means of last resort’.
(34) Case C-378/08, Raffinerie Mediterranee (ERG), EU:C:2010:126, para 56. The ECJ added that ‘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  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.’ Para 57 of the judgment.
(35) Lee, EU Environmental Law, 4.
(36) E.g. Framework Directive 2000/60/EC.
(37) For an excellent discussion of this issue, Lee, EU Environmental Law, 28–56.
(38) See Mandelkern Report on Better Regulation, 2001 available at < xlink:href="http://ec.europa.eu/smart-regulation/better_regulation/documents/mandelkern_report.pdf">http://ec.europa.eu/smart-regulation/better_regulation/documents/mandelkern_report.pdf>; Commission communication, Better Regulation in the European Union, COM(2010)543; Commission Communication, EU Regulatory Fitness, COM(2012)746 final; and the recent Interinstitutional agreement on better law-making. Sacha Garben and Inge Govaere (eds), The EU Better Regulation Agenda: Critical Reflections (Hart 2018).
(40) Krämer, EU Environmental Law, 29.
(41) Klamert, ‘New Conferral or Old Confusion?’ (see Title biblio).
(42) Case C-240/09, Lesoochranárskezoskupenie, EU:C:2011:125, para 35.
(43) Kelemen, ‘Globalizing’ (see Title biblio).
(44) Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal (1989); Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1998); and Stockholm Convention on Persistent Organic Pollutants (2001).
(45) Case C-308/06, Intertanko, EU:C:2008:312, para 42.
(46) Case C-308/06, Intertanko, paras 43–5.
(47) Decision 2005/370/EC, Directive 2003/35/EC inserting Article 10a into the text of the Environmental Impact Assessment (EIA) Directive, Regulation 1367/2006.
(48) Case C-115/09, Bund für Umwelt, EU:C:2011:289.
(49) Case C-240/09, Lesoochranárske zoskupenie.
(50) Mariolina Eliantonio, ‘Annotation to Case C-240/09, Lesoochranárske zoskupenie and Case C-115/09, Bund für Umwelt und Naturschutz Deutschland’  49 CML Rev 797.
(51) For the EU’s locus standi rules, see Commentary on Article 263 TFEU.
(52) Case 25/62, Plaumann, EU:C:1963:17, para 4.
(53) Case C-321/95 P, Stichting Greenpeace, paras 27–5.
(54) Eliantonio, ‘Annotation’, 787.
(55) Report of the Compliance committee of the Aarhus Convention, Findings and recommendations with regard to communication ACCC/C/2008/32 (Part I) concerning compliance by the European Union, 11–14 April 2011, Geneva.
(56) Report of the Compliance committee of the Aarhus Convention, op cit, para 90. See further, Eliantonio, ‘Annotation’.