Tag: Directive 2008/50

Posted on

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.

 

Posted on

Lots of pennies make a pound. Dutch court upholds State duty of care in climate litigation.

Update 29 December 2017. In Milieudefensie et al v The Netherlands the Rechtbank Den Haag was less accommodating to plaintiff in similar public interest litigation involving air pollution. Arguments included Directive 2008/50, WHO health standards, and Articles 2-8 ECHR. It is clear that cases like these will continue to be brought, and will not always side with environmental action groups. Yet there is no doubt that they are an essential part in making Governments sit up and take proper action rather than relying on the separation of powers principle effectively to do nothing. (Greenberg Traurig have good review here).

nUpdate 12 November 2015: the Belgian case has been held up due to the language regime in Belgium’s civil procedure rules.

I have reported previously on this action, when it was launched. The Court at The Hague held late June. For good (and impressive) measure, it immediately released an English translation of the judgment. Jolene Lin has excellent overview here, I will simply add the one or two things which I thought were particularly striking.

Firstly, this judgment was not written by a bunch of maverick ‘environmental’ judges. It is the commercial court at The Hague which issued it (see the reference to ‘team handel’, ‘handel’ meaning commerce, or trade).

The judgment hinges on the State’s duty of care which the court established. Urgenda, applicant, had suggested that regardless of the individual behaviour of Dutch citisens and corporations, the Government carries overall or ‘systemic’ responsibility (‘systeemverantwoordelijkheid’), as the representative of the sovereign Dutch nation, to ensure that it controls emissions emanating from The Netherlands. Article 21 of the Dutch Constitution and the international no harm (sic utere tuo) principle featured heavily in the court’s acceptance of the State duty of care. That the Dutch action might only be a drop in the ocean, did not impress the judge: plenty of pennies make a pound, and at any rate, The Netherlands, as a developed nation, were found to have increased responsibility.

At 4.42 and 4.43, the Court then applies what in EU law is known as the Marleasing principle.

‘From an international-law perspective, the State is bound to UN Climate Change Convention, the Kyoto Protocol (with the associated Doha Amendment as soon as it enters into force) and the “no harm” principle. However, this international-law binding force only involves obligations towards other states. When the State fails one of its obligations towards one or more other states, it does not imply that the State is acting unlawfully towards Urgenda. It is different when the written or unwritten rule of international law concerns a decree that “connects one and all”. After all, Article 93 of the Dutch Constitution determines that citizens can derive a right from it if its contents can connect one and all. The court – and the Parties – states first and foremost that the stipulations included in the convention, the protocol and the “no harm” principle do not have a binding force towards citizens (private individuals and legal persons). Urgenda therefore cannot directly rely on this principle, the convention and the protocol. (….) 

This does not affect the fact that a state can be supposed to want to meet its international-law obligations. From this it follows that an international-law standard – a statutory provision or an unwritten legal standard – may not be explained or applied in a manner which would mean that the state in question has violated an international-law obligation, unless no other interpretation or application is possible. This is a generally acknowledged rule in the legal system. This means that when applying and interpreting national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes account of such international-law obligations. This way, these obligations have a “reflex effect” in national law.‘

In this respect the court also referred extensively to the European Court of Human Rights’ case-law on the duty of a State to put into place a legislative and administrative framework to address the challenges posed by dangerous activities.

The Court also, with reference to international scientific consensus, concluded that climate mitigation, rather than adaptation, is the more effective, efficient and least expensive way to address climate change.

Eventually it settles for a finding of duty of care and ensuing responsibility to reduce the emission of greenhouse gases by at least 25% viz 1990 levels, by 2020. This 25% is the floor of what the international scientific community suggests is needed properly to address the dangers of climate change. (The court, in deference to trias politica, therefore did not want to go higher than that floor).

Next up (other than appeal, one might imagine): the Belgian courts, which have been seised of a similar action.

Geert.

Declaration of interest: I advice the Belgian litigation pro bono.

Posted on

Court of Justice dismisses Vereniging Milieudefensie in air quality appeal. Aarhus not always the jawbreaker in judicial review.

In Joined Cases C‑401/12 P to C‑403/12 P, the issues at stake are the scope of judicial review (in the specific context of information requests), the EU’s long and difficult relationship with locus standi in environmental matters (again though within the perhaps more narrow context of access to information), the correct implementation of the Aarhus Convention, and the direct effect of said Convention. The judgment which the ECJ issued yesterday, underlines the need to review the direct effect of international law on a case-by-case and indeed article-by-article basis. While it is clear that the European Court of Justice overall has great sympathy for the binding impact of the Aarhus Convention (see i.a. my postings on the ECJ’s judgments in cases related to the cost of environmental litigation), in this case the relevant environmental organisations failed to convince the ECJ that Article 9 of the Convention has direct effect.

Article 9 Aarhus provides a review procedure in the event requests for information have been refused. (Readers may wish to consult Article 9 themselves to judge direct effect or lack of it themselves).

Regulation 1367/2006 implements the Aarhus Convention is-a-vis the EU Institutions. The case concerns Article 10 of that regulation, entitled ‘Request for internal review of administrative acts’, which provides in paragraph 1 thereof: ‘Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act.’

Article 2(1)(g) of that Regulation defines ‘administrative act’ as meaning: ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects’.

The Netherlands, in accordance with Article 22 of the ambient air quality Directive, Directive 2008/50, had notified the Commission that it had postponed the deadline for attaining the annual limit values for nitrogen dioxide in nine zones and that it was availing itself of a specific exemption from the obligation to apply the daily and annual limit values for particulate matter. The Commission accepted that postponement. Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht submitted a request to the Commission for internal review of that decision pursuant to aforementioned Article 10(1). The EC refused internal review.  The Commission considered the request inadmissible as the concerned acts in their view were not “administrative acts” as defined in Article 2(1)(g), not being, the EC argued , of ‘individual scope’ but rather of general application.

The General Court sided with applicants: because Article 10(1) of Regulation 1367/2006 limits the concept of “acts” that can be challenged by NGOs to “administrative acts” defined in Article 2(1)(g) of the Regulation as “measures of individual scope”, it argued that the Regulation is not compatible with Article 9(3) Aarhus. That judgment was appealed by many. The AG in current case also sided with the applicants. (Albeit following a different reasoning than the General court).

The ECJ itself disagreed. The provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise. (Ex multi, the ECJ quoted its judgment in the Emissions Trading Scheme case, C-366/10).

Article 9(3) Aarhus, the Court held, does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions: since only members of the public who ‘meet the criteria, if any, laid down in … national law’ are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure at the national level. The Aarhus Contracting Parties enjoy have a broad margin of discretion when defining the rules for the implementation of the ‘administrative or judicial procedures’ (at 59 in fine).

We were quite getting used to Aarhus being employed as a jawbreaker by the ECJ and national courts alike. I am not saying those days are over. However Vereniging Milieudefensie does show both that we cannot assume the Convention’s empowering effect for all of its provisions, and secondly, that at the level of the Convention itself, beefing up one or two articles would certainly assist its implementation. (That in itself, of course, may become more difficult the more frequent the ECJ and national courts both in the EU and elsewhere, employ Aarhus against unwilling State authorities).

Geert.

PS note that in Joined Cases C‑404/12 P and C‑405/12 P, Stichting Natuur en Milieu, the ECJ mirrors this judgment with respect to an internal review of a Regulation setting maximum residue levels for pesticides.

%d bloggers like this: