Posts Tagged Contamination

FIPA, Tws Automation and Ivan: ECJ confirms the secondary nature of ‘principles’ in EU environmental law

European environmental law principles may not have practical legal force in and of themselves. They are transposed into secondary law. It is their (incorrect) application and interpretation in conjunction with secondary law, which gives rise to citizens and corporations calling upon the principles to support their individual position. Hence despite their trumpeted value as ‘principles’, in the law in practice, individual citizens or corporations need transposition of said principles in secondary law, to argue that such secondary law has infringed the principles.

A clear application of this reality, is the recent ECJ judgment in Case C-534/13, a case with an impossibly long series of applicants and defendants, which for ease of reference I have dubbed FIPA, Tws Automation and Ivan in title of current posting. (After the main protagonists).

The main issue that arose, was whether national (Italian) legislation under which no provision is made for the authorities to require owners of polluted land who have not contributed to that pollution to carry out preventive and remedial measures, and the sole obligation imposed concerns the reimbursement of the measures undertaken by those authorities, is compatible with the ‘polluter pays’ principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority.

The ECJ emphasises the role of Directive 2004/35 in this context. Held that the Directive does not hold against such absence. And recalled in line with previous case-law, that the environmental principles of the Treaty ‘do no more than define the general environmental objectives of the European Union, since Article 192 TFEU confers on the European Parliament and the Council of the European Union, acting in accordance with the ordinary legislative procedure, responsibility for deciding what action is to be taken in order to attain those objectives. (…)  Consequently, since Article 191(2) TFEU, which establishes the ‘polluter pays’ principle, is directed at action at EU level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation — such as that at issue in the main proceedings — in an area covered by environmental policy for which there is no EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question (…) Similarly, the competent environmental authorities cannot rely on Article 191(2) TFEU, in the absence of any national legal basis, for the purposes of imposing preventive and remedial measures.(…)’ (at 39-41)

A sobering conclusion, yet one solidly rooted in legal practice and institutional balance. Geert.

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Extended producer responsibility, former students and Israeli law – The Supreme Court in Eitanit construction products

Eitanit construction products (formerly known as Isasbest) failed in its judicial review of an Israeli Act which holds producers of hazardous materials (partially) liable for the remediation costs following pollution by said materials. The Israeli High Court rejected the asbestos manufacturer’s arguments, which were mainly based, I understand, on the protection of property rights. It upheld instead the application of the polluter pays principle. It also referred to a cradle to grave /well to wheel approach which is evident in for instance the European Union’s extended producer responsibility scheme.

In doing so, it referred to Aaron Ezroj’s 2009 article Extended Producer Responsibility Programs in the European Union, 20 Colo. J. J. Int’l L. & Pol’y 199. Aaron is a former student of mine, the article is based on his master paper here at Leuven.

I have yet to see an English version of the judgment. I have a Hebrew version on file for those versed in the language. English language reporting is available from Jonathan Zasloff and on JSpace. Discussion also included the principle of equality (non-discrimination) and retroactivity of Statute.

Geert.

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