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It is striking that this book puts harmonisation and codification in environmental and energy law again on the agenda. At first blush that may seem surprising. Looking at the literature one can easily see that the codification of environmental law was an issue that was high on the agenda in the last decade of the previous century. A team around the famous Ghent Professor Hubert Bocken devoted an entire conference to the codification of environmental law and dedicated a book to that topic. But that conference took place on 21–22 February 1995, more than 25 years ago.
The popularity of a codification of environmental law in that period can partially be explained by the fact that environmental law had emerged as a rather scattered body of various sectoral laws that in many countries was spread over a wide variety of different statutes and regulations. It can therefore be understood that codification, in the sense of bringing together all existing environmental legislation in one legislative document, was popular in that period. It was popular in academia, but the concept of codification was also popular at the policy level; in many European Member States some harmonised environmental law had been introduced or was at least discussed. Already in that period the objectives of codification were discussed whereby a distinction was made between, on the one hand, a simple bringing together of existing environmental laws into one legislative document and, on the other hand, a more substantive operation whereby, for example, procedures and enforcement would also become harmonised. The first type of operation is more a coordination of existing environmental law and could be qualified as a restatement, which mostly provides esthetical benefits and the benefit of easier access to the contents of environmental law. This type of coordination was described by Gilhuis as a middle point between the totally segregated sectoral environmental legislation, which still existed in many Member States at that time, and fully integrated harmonised environmental law. Codification was considered also a more substantive exercise, assuming that it would go beyond a restatement of existing laws, but would also harmonise (and thereby improve) permitting, standardsetting and enforcement procedures.
The concept of harmonisation covers various meanings. A very broad and general definition would be that harmonisation consists of the bringing together of legal ideas to allow a functioning in unison. In the context of the European Union, harmonisation is mostly used in the sense of approximation of laws between different legal systems (i.e. external harmonisation). However, it can also be understood as harmonisation within one legal system or one branch of law. A definition for this so-called internal harmonisation could be:
Internal harmonisation is the legal process in which incoherencies within one legal system are resolved in a coordinated and integrated manner.
In this chapter, we will scrutinise the idea of internal harmonisation of environmental law in three Member States, namely, the Netherlands, Belgium (Flemish region) and France. Of course, the inclusion of experiences in all Member States would be very useful in order to determine best practices of harmonising environmental legislation. However, this would not be feasible in the context of this chapter and shall be the topic of further research.
In the second section, we will scrutinise the development of environmental legislation in each Member State. We will take a look at the evolution and existing environmental legislation before any harmonising steps had been taken, the reasons and motives for harmonisation, the starting point and following process and the current state of environmental legislation. Following this, in section three, we will partially conduct the same exercise at the EU level. A clear overview of the national reasons, processes and instruments will be useful, as we can consider whether these motives are similar to the ones identified at the EU level, and how the legal process may be transposed to this supranational level. Finally, some concluding remarks will be made on the possibility of further harmonising EU environmental legislation.
The main research question throughout this contribution is: can the EU learn from legal processes of environmental internal harmonisation in the Member States?
HARMONISATION OF ENVIRONMENTAL LEGISLATION IN THE MEMBER STATES
At the national level, we can observe several initiatives to internally harmonise environmental legislation. Across the EU, environmental codes and general environmental acts have been adopted in the different Member States.
After nearly fifty years of EU environmental law-making, the discussion on codification and harmonization is not only more relevant than ever, but it is also unavoidable for at least three reasons:
1) The increase of legislation across very different thematic areas/sectors – water, nature, air, waste and chemicals; often leading to a certain dispersion of legal instruments.
2) The volume of legislation (in the order of 50 main legal instruments) which needs to be effectively enforced.
3) The use of very different kinds of instruments and approaches over time (directives, regulations, decisions).
The Commission is working hard in ensuring the overall coherence when developing and evaluating legislation.
Let me address these matters further.
1) In the field of environmental policy, it is important to note the key role of Environmental Action Plans (EAPs) since 1973 in outlining the priorities of the EU legislative agenda for five-year periods.
We are now on our 7th EAP and have tabled our proposal for an 8th EAP under Art. 192 (3) of the Treaty. Environmental Action Plans are adopted through the co-decision procedure by the Council and the European Parliament.
2) The Treaty, of course, plays a very significant role, in particular its Environment Chapter (Articles 191 and 192 TFEU) frames the level of ambition and steers EU action forward by means of certain basic principles.
The Chapter, introduced in 1987, was in part a Treaty codification of what was endorsed in earlier action plans. The first action plan in 1973 already announced the polluter pays principle. The action plans themselves are mentioned in Article 192(3).
3) Significant initiatives developing new “concepts” have contributed to greater EU harmonization in this area. The Circular Economy or the recent European Green Deal, are very good examples in moving forward our environmental policy.
EVALUATING AND REVIEWING LEGISLATION
Codification has already taken place at the level of most EU environmental individual instruments. This means integrating amendments and streamlining legal texts.
The present chapter will discuss some aspects of codifying EU environmental law. It will limit itself to the more formal side, because the question of how substantive environmental law should be organised is an eminent political one. Indeed, whether air or water pollution should mainly be based on emission limit values or quality objectives, whether economic instruments – taxes, pollution allowance trading systems or other instruments to internalise the externalities of economic activities – should be used is not a question of greater or less intense codification, but depends on political choices. For this reason, only the more procedural provisions of EU environmental law will be discussed.
After clarifying the EU terminology concerning the approximation of different pieces of legislation and the constitutional framework of codification (1), a number of examples will be discussed, where a codification would be possible (2). A third section will describe the principal limits which oppose, at present, such a codification at EU level (3).
CODIFICATION IN EU LAW
The terminology of the TFEU with regard to common, EU-wide legislative provisions is not coherent. While the provisions on the internal market (Article114ss. TFEU) refer to the approximation of laws, Article 191(2) TFEU mentions ‘harmonisation measures’ in a provision which concerns national safeguard measures and which has remained, until now, irrelevant in practice. Both ‘approximation’ and ‘harmonisation’ refer to melting, in one way or the other, national provisions into common, EU-wide rules.
In contrast to this, ‘codification’ of EU legal provisions refers to the activity of bringing different EU-wide provisions into one legal frame. Such a codification takes therefore as a point of departure the existing environmental provisions of EU law and tries to establish common legislative provisions which concern the different sectors of environmental law, such as on water, air, soil, waste or permits.
For a long time, but especially and more rapidly so during the recent years, the environment and the natural resources of our planet have been exploited and polluted by both private individuals and corporate entities. The consequence of such behaviour is that serious challenges, such as climate change, various forms of pollution, as well as unsustainable consumption and production, threaten people’s health, as well as the very survival of the flora and fauna worldwide.
In such a context, international and European environmental policies and laws aimed at protecting the environment are becoming more and more important. A high level of protection of the environment has become a primary objective of the EU. To that extent, several European acts have been adopted. In particular, to resolve the original fragmentation occasioned by the inclusion of environmental provisions into different pieces of sectoral legislation protecting different interests, such as water, soil or air, harmonisation has played an important role in dealing with environmental protection in a more integrated manner.
Furthermore, the number of actors competent to monitor the implementation of environmental laws, as well as the amount of environmental compliance networks composed of European environmental inspectors, police officers, prosecutors, judges, auditors and heads of environmental protection agencies, has considerably increased in recent years. Even mechanisms designed to enhance compliance with environmental legislation and oversee the correct application of European environmental legislation at the national level have been adopted.
However, air, water and soil pollution has not significantly diminished, the effects of climate change are in the public eye and the problem of waste disposal has not yet been solved in many countries.
From the foregoing, it may be deduced that the problem does not stem from the lack of harmonised environmental rules or from the absence of actors responsible for implementing and enforcing environmental legislation, nor does it stem from the lack of networks allowing those actors to communicate between the most adequate ways of enforcing environmental obligations.
The reasons for the inadequate protection of the environment must thus be sought elsewhere. It is the system of environmental governance, particularly with regard to mechanisms ensuring access to justice, which has to be rethought.
Nobody could deny that soil plays a crucial role in the provision of all vital ecosystem services. However, besides acting as the benchmark for food production, water storage and supply, biodiversity – let alone added cultural and social services – soils are also garbled by the upsurge of climate change. The impacts of soil exploitation on a massive scale for energy and food production reveal a core, yet overlooked, ecological function of soil: carbon pooling. This ecological function serves as a yardstick for several ecologic functions carried out by soil in order to halt greenhouse gas emissions or, in turn, even worsen it: soil organic matter (SOM). SOM stores a significant amount of greenhouse gas (GHG) – mainly CO2 – in the form of soil organic carbon (SOC) stocks. Similarly, other GHGs, namely, nitrous oxide (N2O) and methane (CH4), are also produced and stored (or trapped) in soils under anaerobic conditions, like peat and permafrost. Soils are thus the second-largest active store of GHG after the oceans, with around 1.500 billion tonnes of carbon found in SOM worldwide. In Europe, the total SOC stock amounts to 73 – 79 billion tons. Hence, the 2011 European Commission (EC) Communication on the Resource Efficiency Roadmap called upon Member States to adopt measures aimed to reduce erosion and enhance SOM, with a view to an overall non-regression of SOM levels – especially in soils with less than 3.5 per cent SOM. Notwithstanding the key role played by soils in the global carbon cycle and the dire ecological interrelations between climate change and its functions, however, the issue of SOM protection has been traditionally marginalised even in the lingering debate about a European comprehensive regime on soil protection.
This chapter will thus first outline the interplay between SOM ecological functions and the threats thereto posed by climate change. Next, it will analyse the legal instruments arguably aimed at tackling the issue of soil integrity in relation to GHG emissions at the EU level. Lastly, it will envision a set of potential solutions as to a comprehensive and effective regulatory approach to SOM protection in the EU.
The energy economy is changing fast. New policies and technologies have shifted and are shifting the way power is generated and distributed in Europe. The market structure is evolving, with changing roles for the existing stakeholders and new players. New business cases have emerged and are developing. Even more so, the progressing climate change demands rapid and unprecedented actions and adjustments on all levels of the economy and the energy economy in particular. The massive changes that can be observed and foreseen may easily overburden the legislators. Law lags behind when the legislative process does not keep up with the pace of transition or the legislator has blind spots in regard to a new situation, especially new technologies.
Law can be an enabler and a coordinator. It is the major tool to transmit policy choices and to shape the economy. If law lags behind, governance is weakened. Within a legal blind spot, the legal impulses do not fit the actual needs. This is particularly relevant for the area of infrastructure and energy: this area is governed by a plethora of conflicting interests and intricate interactions among different levels of actors, which have to be coordinated and demand a strong regulatory framework. Additionally, lagging law can create frictions between the actual and the legal status quo, which can provoke unwanted distortions, lead to unnecessary costs and hinder further developments. The consequences of a law that does not keep up with actual developments go beyond mere legal problems.
EU law is particularly vulnerable to blind spots and lagging. It is fragmented and punctual by nature. The legislative process is rather lengthy and needs a broad support among different institutions. In actuality, it tends towards unanimity even more than required by the treaties. At the same time, EU harmonisation measures are specifically aimed at coordinating different interests and regimes and enabling new approaches to common challenges, especially in cross-border constellations. A lack of adequate regulation questions the purpose of EU harmonisation law itself.
This chapter discusses the EU law for H 2 -CCS chains – a set of technologies and business cases associated with ‘blue hydrogen’ – as an example of the problem of legal timeliness and blind spots in the time of climate change.
Following the 2019 conference titled ‘Harmonisation in environmental and energy law’, 13 contributors offer a unique perspective on the topic of harmonisation from their fields of expertise. With a critical mindset, the authors discuss a variety of issues reaching from more general harmonisation concepts and processes to harmonising specific pieces of environmental and energy law. Throughout the book, an overview of the current state of the law is supplemented with a look into the future, proposing ways forward and presenting different harmonising solutions for the problems raised.
THE 2019 CONFERENCE
Within the context of celebrating its 10th anniversary, the Law Faculty of Hasselt University, together with several other Belgian universities and the European Environmental Law Forum, organised an international conference on harmonisation in environmental and energy law, which took place on 28 and 29 March 2019. The conference was chaired by Professor Bernard Vanheusden. During two very rewarding days, the Environmental Law Unit of the Research Centre for Government and Law (CORe) was pleased to host around 70 academics, practitioners and policy-makers from all over Europe. This book contains the written account of several of the thought-provoking presentations of the 2019 conference. However, current developments that have emerged since then were also incorporated into the contributions.
Environmental legislation is often incoherent and fragmented, causing hurdles to its application and enforcement. In this regard, rule-makers resort to harmonisation. Harmonisation is seen as referring to a number of techniques and instruments that all aim to clarify rules and create a more coherent and solid legal framework. The main aim of the conference was to examine the merits of harmonisation – without overlooking potential problems – and ask critical questions to spur fundamental discussions. The rather broad topic of harmonisation in environmental and energy law was selected because it fits with research currently being conducted in the Environmental Law Unit on internal harmonisation of environmental law, considering, for example, the possibility of an EU Environmental Code.
Besides five keynote speeches from renowned academics and the Director- General of the Directorate-General (DG) for the Environment of the European Commission, 33 other researchers in the field of environmental and energy law shared their findings during five parallel sessions.
The principle of consistency is a common-sense tenet underpinning the rule of law, which requires that legal interpretations be consistent, vertically and horizontally. The principle and the related doctrine of consistent interpretation are important tools for the harmonisation of EU law. This chapter conducts an examination of the case law of the Court of Justice of the European Union (CJEU) in the area of Article 9 of the Aarhus Convention UNECE 1998 as an exposition of the failure of the court to uphold the doctrine of consistency horizontally. The case law of the CJEU applying Article 9 of the Aarhus Convention to the issue of standing rights before national courts of Member States can be negatively contrasted with the case law of the CJEU when it applies the same article to standing rights for reviewing acts of the EU institutions before the CJEU under Regulation (EC) 1367/2006 (hereinafter ‘the Aarhus Regulation’). This results in an undesirable lack of harmonisation in the application of the Aarhus Convention principles across the multi-level governance system of the EU.
The case law of the CJEU regarding access to justice in environmental matters (and the provisions of Article 9 of the Aarhus Convention) before the national courts is marked by its emphasis on the need for broad access to justice and consistency of interpretation with the provisions of the Aarhus Convention (even where those provisions have not been implemented in directly relevant EU law measures/do not meet the conditions for direct effect). On the other hand, when NGOs attempt to review environmental decisions of the EU institutions before the General Court, the CJEU has repeatedly refused access in what appears to be a failure to apply the same principles and requirements of consistency and broad access to justice to the EU institutions and its own procedures.
This restrictive approach to review is in direct opposition to the pronouncements of the Aarhus Convention Compliance Committee on the issue in their draftdecision in C32 I & II. It also stands in contrast to the approach of the court in the area of economic interests such as competition and state aid cases, where affected individuals have locus standi without having to demonstrate a particular concern which marks them out from others similarly affected.
‘The Fox and the Crow’, one of the famous fables of Aesop, tells the story of a vain crow and a toady fox. The devious fox steals the crow’s cheese. Yet, under European species protection law, it is the other way around: the fox is robbed of almost any protection and, compared to the treatment of the fox, the crow enjoys a much more favourable legal status.
This chapter will explore to what extent wild animals in the EU are differently treated, by analysing the legal regimes and case law (Section 3). Subsequently, the underlying motivations for the different treatment will be discussed, with a historical as well as a political explanation being presented (Section 4). The impact of different treatment cannot be ignored; therefore, this will be addressed, not only from a legal, but also from a policy-making point of view (Section 5). This chapter concludes with a section devoted to the ‘issue of harmonisation’, proceeding from a two-fold approach (i.e. animal welfare and species protection) (Section 6). Before delving into these topics, this chapter will set out the problem-setting and scope of this article (Section 2).
This research extends previous insights, by devoting attention to the differences between the birds directive and the habitats directive. This paper is also unique in that it links the harmonisation of species protection to the harmonisation of animal welfare. Consequently, the different treatment of wild animals in the EU will be tackled, both from an animal welfare perspective and from a species protection perspective.
PROBLEM-SETTING AND THE SCOPE OF THIS CHAPTER
THE DIFFERENT TREATMENT OF WILD ANIMALS IN THE EU
Two areas interfere with the treatment of wild animals at the European level: species protection and animal welfare.
Species protection, as part of nature conservation, is governed by several EU legal instruments, including the birds directive, 1 the habitats directive, the Regulation on Invasive Alien Species and the CITES Regulation. Certain species protection instruments are inspired by animal welfare considerations, such as the directive concerning the importation into Member States of skins of certain seal pups and products derived from them 5 and the regulation on trade in seal products.
INTRODUCTION: MULTILINGUALISM AND TERMINOLOGY PROBLEMS WITHIN THE EUROPEAN UNION
As is well known, one of the main features of the European Union (EU) is the recognition of integral multilingualism : the languages of all Member States are recognised as official languages of the EU. This figure currently stands at 24. Without going into detail, in a very general way it can be said that the recognition of multilingualism on the legal level implies that the treaties and legal acts of general application are drafted and published in all official languages.
Consequently, the multilingual character of EU law inevitably involves a high degree of complexity, together with relevant translation problems that are likely to increase with the accession of new Member States.
As we are speaking of legal rules, this complexity involves both language and legal problems, as each legal language mirrors a specific legal culture and consequently varies from one legal system to another. The problem is not only that of understanding EU legal rules, but rather, that of their uniform application in order to achieve an effective harmonisation of the laws of EU Member States, and not a merely nominal and apparent one. In fact, since the EU law-makers’ task should be to harmonise the laws of EU Member States, they should ensure a high degree of consistency between adopted legal provisions so that the latter can be interpreted in the same way and produce the same effects in all Member States.
However, although this seems of undoubted importance for achieving the ultimate goals of the European Union, it does not always occur as a consequence of a number of issues deriving from the drafting and implementation of EU legislation, such as, in particular, those related to legal terminology, interpretation and translation specific to the EU context.
Indeed, one central problem of multilingual legislation is that of terminology and translation of legal concepts, because of the conceptual differences between the various legal systems. Moreover, with regards to the EU, even though the legislature is necessarily multilingual, it cannot rely upon a common terminology at the European level. In addition, sometimes EU law-makers do not seem to be aware of the extensive differences that exist at a conceptual and terminological level within the European legal area.
HARMONISATION AND THE EU LOW-CARBON POWER TRANSITION
In early 2015, the European Commission (the Commission) announced the establishment of the Energy Union. The realisation of this project will go far beyond the creation of competitive common markets for electricity and natural gas, which, from the late 1990s onwards, has been the aim of EU regulatory efforts in the energy sector. The description of the Energy Union hints at the great variety of policy fields that are involved. The Commission wants to pursue an ‘ambitious’ climate policy, while the EU energy sector must be able to supply ‘households and businesses’ with ‘secure, sustainable, competitive and affordable energy’.
The legislation that implements the Energy Union reflects this much more comprehensive approach, articulated in the five dimensions of EU energy and climate governance – energy security, internal energy market, energy efficiency, decarbonisation, as well as the compound of research, innovation and competitiveness. Thus, the Energy Union seeks to integrate aspects of energy, market, environmental and social policies, foreshadowing a gradual harmonisation of related legislation, including oversight mechanisms.
Since the inclusion of environmental and social concerns in the Energy Union exceeds the scope of past EU legislation on electricity, the Member States ‘harmonisation task becomes extensive and multi-focused. The extent to which legislation in this regard will be harmonised will have a major impact on the character of the Energy Union. The outcome of the Member States’ harmonisation efforts will largely determine how EU citizens perceive this continent-wide project. Societal consensus and support will be vital, mainly because this unprecedented socio-economic transformation will eventually re-define the basis of the Union’s economy. EU climate goals and actions are still evolving. The Union aims to achieve climate neutrality by 2050. The legislation to implement the Energy Union prescribes how the Member States should embark on this transformation. A timely decarbonisation of electricity generation is crucial for the further progress of this process.
However, the establishment of the Energy Union is also influenced by external developments and actors, such as international law and global business practices.