Archive for category Environmental law – EU

The High Court on the lawfulness of the proposed ivory ban.

Hot on the heels of yesterday’s post on e-collars, a short note on yet another trade and animal welfare /biodiversity case. In [2019] EWHC 2951 (Admin) Friends of Antique Cultural Treasures v Secretary of State for the environment, food and rural affairs, Justice Jay (‘Jay J’ even though correct might sound a bit too intimate) upheld the UK’s planned ban on ivory trade, stricter than anything in place elsewhere. As a general rule, the Act interdicts the sale of antique worked ivory, that is to say pre-1947 artefacts, unless one of limited exemptions is applicable.

The discussion engages CITES, pre-emption /exhaustion by harmonised EU law, the environmental guarantee of Article 193 TFEU (albeit not, oddly, the issue of notification to the EC), Article 34 TFEU, and A1P1 ECHR.

On uncertainty, Justice Jay refers to the precautionary principle: at 155: ‘we are in the realm of scientific and evidentiary uncertainty, and the need for a high level of protection. §3.1 of the Commission’s 2017 Guidance makes that explicit. Although the evidence bearing on the issues of indirect causation and demand in Far Eastern markets may be uncertain, statistically questionable, impressionistic and often anecdotal, I consider that these factors do not preclude the taking of bold and robust action in the light of the precautionary principle.’

Rosalind English has analysis here and refers even to Edmund de Waal’s novel The Hare with the Amber Eyes which has been on my reading list after my wife recommended it – this is a good reminder.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff., and Chapter 17 (p.308 ff).

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The UK ban on e-collars. High Court finds decision does not breach property rights (ECHR) or internal market (TFEU).

I tweeted the judgment the day it was issued, apologies for late succinct review. I wrote a few years back on the legality of use restrictions on goods lawfully marketed in other Member States, and see also my brief review of Amsterdam’s booze bikes here. In [2019] EWHC 2813 (Admin) The Electronic Collar Manufacturers Association v Secretary of State for Environment, Food and Rural Affairs, Morris J upheld the UK Government’s ban on e-collars (a hand-held remote-controlled (not automated: a distinction that matters as Rosalind English points out) e-collar device for cats and dogs, used particularly in dogs for training purposes).

His analysis engages all the right issues in discussing the lawfulness of a ban at 204 ff under Article 34 TFEU (including consultation and commissioned research issues and of course proportionality), less focused than I would have expected perhaps on the fact that these items are lawfully marketed elsewhere in the EU, and indeed A1P1 (Article 1, first Protocol) ECHR. The remainder of the judgment discusses internal UK judicial review. An excellent primer on trade and animal welfare under EU and ECHR law.

Geert.

 

 

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Is the innovation principle compatible with a European Green Deal?

Rather than blogging my own piece on this week’s CEPS study (in which no mention is made of the covert study supporting same), I am happy to reblog the analysis of one of the co-authors of my earlier paper on same. Excellent analysis with which I agree entirely.

BLING

K J Garnett

On the day before Commission President Ursula von der Leyen’s new team was voted in by the European Parliament, an independent, Brussels-based, think-thank CEPS published their third report on the Innovation Principle : ‘Study supporting the interim evaluation of the innovation principle’. With von der Leyen promising to tackle climate change and promote a European Green Deal now would be a good time to examine whether the innovation principle fits in with this vision for greater sustainability or whether its true intention is to curb Europe’s strict environmental laws?  

As lawyers we are familiar with general principles and those practicing European law are familiar with the fact that the EU applies a number of general principles : proportionality, subsidiarity, substantive & fundamental human rights, precaution,… Authority for the EU’s legal principles stems from primary law, typically the Treaties themselves or, more rarely, when the CJEU…

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Blaise and others: The CJEU on precaution and regulatory approval.

Starting with the infamous and fundamentally flawed Laws of Fear by Cass Sunstein, Europe’s precautionary principle has been under constant attack by industry both within and outside of the EU. My postings on the principle here and the section on it in my Handbook of EU environmental law with Leonie Reins attempt to show that despite industry propaganda against it, the principle has never been a blind ‘when in doubt, don’t do it’ approach to risk management.

In C-616/17 Blaise and others, the Court once again shows its measured approach. Defendants in national criminal proceedings, argued that they should be let off in a criminal damage prosecution. They are environmental activists and are charged with causing criminal damage to containers of herbicidal products (specifically ‘Roundup’) containing the chemical glyphosate. In their defence, they argue that the products present an unacceptable potential risk to human health and the environment and that the EU approval process is defective and therefore unlawful.

The Court found that the approval process on the basis of EU law is entirely in line with EU law, including the precautionary principle. Steptoe have excellent overview here and I am happy to refer entirely.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

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Proposition Walhalla. ‘The algorithms of the law must keep pace with new and emerging technologies.’

‘The algorithms of the law must keep pace with new and emerging technologies’ is the opening sentence of Hadon-Cave LJ and Swift J in R v The Chief Constable of South Wales Police and others [2019] EWHC 2341.

The central issue is whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of AFR (automated face recognition) in a free and civilized society. The High Court finds it is. No doubt appeal will follow. I leave the assessment of the findings (discussing in particular Article 8 ECHR: right to respect for one’s private and family life, one’s home and one’s correspondence) of the Court to others. It is the opening sentence which drew my attention as, inevitably, it did others’. It is a sentence upon which one can hinge en entire regulatory /new technologies course. Must the algorithms of the law (whatever these may be) keep pace with technology?  Or rather, guard against the challenges of same?

Discuss.

Geert.

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Dutch Supreme Court advisors suggest Court of Appeal judgment upholding State duty of care in Urgenda climate litigation should stand.

The Dutch Court of Appeal‘s confirmation of the Court of First Instance at The Hague judgment in the climate litigation case, should stand. So advised two senior court advisors to the Supreme Court last week (they also announced a full English translation to be posted to the site today, Friday. Again quite a service from the Dutch judiciary!) As in the European Court of Justice, their opinion is not binding, but it is highly authoritative.

Others for whom this issue is their daily bread and butter no doubt will analyse the Opinion in great detail, discussing as it does issues of trias politica, direct effect of international law etc. Of particular note are their concluding remarks, where they emphasise the importance of the ECHR in the action, and (in trias politica context) the fact that the courts cannot and must not directly instruct the political class to legislate. All it can do is point out what is needed and where the Government fell short. That will leave the claimants with the task of pondering how to operationalise the judgment should the Supreme Court follow.

Geert.

 

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Principles, principles everywhere. First test of the ‘energy solidarity’ principle in Poland v EC (Nordstream /Gazprom).

As I continue to dabble in research and talks about the innovation ‘principle’ (not in existence), and find myself in court (an attachment procedure following judgment in Israel) discussing the common law principle that ‘he who comes to equity must approach the court with clean hands’, the CJEU (General Court) yesterday in T-883/16 held Poland v EC a first test of the TFEU Energy title’s ‘principle of energy solidarity’. Note Poland’s litigant friends (Latvia; Lithuania), and the EC’s (Germany). This tells you something about energy security of supply on our Eastern borders.

Article 194 TFEU: ‘1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:…’

The gas pipeline Ostseepipeline-Anbindungsleitung ﴾OPAL) is the terrestrial section to the west of the Nord Stream 1 gas pipeline. Its entry point is located in Germany and its exit point is in the Czech Republic. In 2009, the Bundesnetzagentur (BNetzA, the German regulatory authority) notified the Commission of two decisions that exempted the capacities for cross-border transmission of the planned OPAL pipeline from the application of the rules on third party access and tariff regulation laid down in Directive 2003/55. Those decisions concerned the shares belonging to the two owners of the OPAL pipeline. The same year, the Commission adopted a decision by which it requested the BNetzA to modify its decisions by adding certain conditions. Under those conditions, in particular, a dominant undertaking, such as Gazprom, could reserve only 50% of the cross-border capacities of the OPAL pipeline, unless it released onto the market a
volume of gas of 3 billion m³/year on that pipeline (‘the gas release programme’). In accordance with those three decisions of 2009, the capacities of the OPAL pipeline were exempted from the application of the rules on regulated third-party access and tariff regulation on the basis of Directive 2003/55. This decision was later (2016) slightly amended albeit not in substance.

Poland argue that the grant of a new exemption relating to the OPAL pipeline threatens the security of gas supply in the European Union, in particular in central Europe. Poland suggests that the 2016 decision breaches the principle of energy solidarity in that it enables Gazprom and undertakings in the Gazprom group to redirect additional volumes of gas onto the EU market by fully exploiting the capacities of the North Stream 1 pipeline. Taking into account the lack of significant growth in demand for natural gas in central Europe, according to Poland, that would, as its only possible consequence, influence the conditions of supply and use of transmission services on the pipelines competing with OPAL.

The General Court yesterday (the case no doubt may be appealed) held that the application of the principle of energy solidarity does not mean that the EU energy policy must never have negative impacts on the particular interests of a Member State in the field of energy. However, the EU institutions and the Member States are required to take into account, in the context of the implementation of that policy, the interests both of the European Union and of the various Member States and to balance those interests where there is a conflict. In neither the preparation of the 2016 decision nor its actual content is there any trace of the EC having considered the principle and its impact: the Decision is therefore annulled.

The case adds to the corpus of judgments where the CJEU is called upon to apply ‘principles’ and clearly emphasises preparatory due diligence, rather than second-guessing the actual application of the principle in substance.

Geert.

(Handbook of) EU Environmental Law (with Leonie Reins), 2017, Part I Chapter 2.

 

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