The Environment Chronicle

The "Urgenda Climate Case 2015" against the Dutch government was the first in the world where citizens blamed their government for not contributing enough to dangerous climate change. On June 24, 2015, the District Court of The Hague ruled that the government must reduce its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The ruling called for the government to take more effective action against climate change immediately. After the Dutch government appealed the verdict in September 2015, the opposition was rejected by the Hague Civil Court on 9 October 2018. The Dutch Ministry of Economic Affairs does not rule out a revision. However, emitting 25 percent less greenhouse gases can be achieved according to the Ministry 2020.

Order of theCourt of Justice of the European Union in Case C-441/17 R: Poland must immediately cease its active forest management operations in the Białowieża Forest, except in exceptional cases where they are strictly necessary to ensure public safety. If Poland is found to have infringed this order, the Court will order it to pay to the Commission a penalty payment of at least €100 000 per day.

The EU and seven of its member states have ratified the Minamata Convention on mercury thereby exceeding the 50-party requirement for the treaty to enter into force. On 18 May 2017, the EU, Bulgaria, Denmark, Hungary, Malta, the Netherlands, Romania and Sweden deposited their instruments at the UN headquarters in New York, bringing to 52 the number of parties that have ratified. As a result, in 90 days, on 16 August 2017, the Minamata Convention will become legally binding for all its Parties.

On 14 June 2017, Sweden passed a new climate law. The Swedish parliament voted 254 to 41 to adopt the Climate Act, which commits the government to becoming a net-zero carbon emitter by 2045. Sweden becomes the first country to significantly upgrade its ambition in light of the international climate deal adopted in Paris in 2015. It was previously targeting carbon neutrality by 2050. The Climate Act will enter into force on 1 January 2018.

On 15 December 2016, the Regional Court Essen dismissed the “climate lawsuit” of Peruvian mountain guide and farmer Saúl Luciano Lliuya against RWE. The civil court justified its decision inter alia by pointing to a lack of “legal causality,” which it argued does not exist despite the fact that there may be a “scientific causality”. The claimant and his lawyer had hoped to proceed to the evidentiary stage with the aim of clarifying the legal liabilities of large contributors to climate change for providing protection from the risks associated with climate impacts.

The European Commission has decided to refer Germany to the Court of Justice of the EU over the failure to apply Directive 2006/40/EC (Mobile Air Conditioning (MAC) Directive) on mobile air-conditioning systems which prescribes the use of motor vehicles' refrigerants with less global warming potential and the phasing out of certain fluorinated greenhouse gases. The Commission alleges that Germany has infringed EU law by allowing the car manufacturer Daimler AG to place automobile vehicles on the EU market that were not in conformity with the MAC Directive, and failing to take remedial action. Daimler AG invoked safety concerns regarding the use of refrigerants prescribed by the MAC Directive. These concerns were not shared by any other car manufacturer and were rejected by Germany's Federal Motor Transport Authority (Kraftfahrt-Bundesamt, KBA) and the Joint Research Centre of the European Commission (JRC), which undertook an additional risk analysis in 2014. Despite contacts between the Commission and the German authorities in the context of the infringement procedure, Germany has not taken any further steps against the issuing of the type-approval of non-compliant motor vehicles and has not taken appropriate remedial action on the manufacturer. In referring Germany to the Court of Justice, the Commission aims to ensure that the climate objectives of the MAC Directive are fulfilled and that EU law is uniformly applied throughout the EU so as to ensure fair competitive conditions for all economic operators.

On 10 September 2015, the European Court of Justice confirmed that the presence of Substances of Very High Concern (SVHC) in products needs to be calculated at component level. This important decision concerns complex products composed of many different ‘articles’. Under the 2006 Regulation on the Evaluation, Authorisation and Restriction of Chemicals (REACH), the use of any substance classed as ‘of very high concern’ for health or the environment must be notified to the European Chemicals Agency (ECHA) by the producer or importer, whenever the concentration of the substance exceeds “0.1% weight by weight” of the article in question.

In 2010, Germany adopted a law on excise duty on nuclear fuel (Kernbrennstoffsteuergesetz). That law introduced, for the period from 1 January 2011 to 31 December 2016, a duty on the use of nuclear fuel for the commercial production of electricity. Kernkraftwerke Lippe-Ems, has challenged the duty before the Finance Court, Hamburg,Germany. Kernkraftwerke Lippe-Ems takes the view that the German duty on nuclear fuel is incompatible with EU law. The Finanzgericht Hamburg decided to submit questions to the Court of Justice of the European Union concerning the compatibility of the duty with EU law. On 4 June 2015, the Court of Justice replies that EU law does not preclude a duty such as the German duty on nuclear fuel.

Following the referrals of Slovenia and Poland to Court on similar grounds, the European Commission is now referring Germany to the EU Court of Justice over its failure to transpose EU legislation on the recycling of waste electrical and electronic equipment (known also as WEEE Directive) and communicate the national transposition measures. The EU rules, which should have been enacted into national law by 14 February 2014, are intended to prevent or reduce the negative environmental impact from this fast-increasing waste stream. The rules are based on a revision of the previous WEEE Directive, and they incorporate a number of new or substantially modified provisions, none of which have yet been transposed by Germany. The Commission is therefore asking the Court, on the basis of the procedure set out in Article 260(3) TFEU, to impose a penalty payment on Germany in the amount of EUR 210 078 per day until the law is enacted."

On 29 April 2015, the Supreme Court unanimously ordered that the UK government must submit new air quality plans to the European Commission no later than 31 December 2015.

A person affected by climate change has made the unprecedented move to launch a claim against a European carbon major, demanding that the company contribute to urgently needed protective measures: Peruvian citizen Saúl Luciano Lliuya, demands payment for safety works from German utility RWE. Mr Luciano Lliuya’s property as well as large parts of his hometown Huaraz are prone to a so-called glacial lake outburst flood from Lake Palcacocha located upstream from the city. Germanwatch, a German environmental and development organisation, supports Mr Luciano Lliuya’s move against RWE upon his request. If the company’s response to his claim proves unsatisfactory, Mr Luciano Lliuya plans to sue RWE in a German court.

On 12 December 2015 a High Court in London referred a review of the animal testing ban put forward by by the European Federation for Cosmetics Ingredients Manufacturers (EFfCI) to the European Court of Justice. The EFfCI wants companies to be able to sell cosmetics in the EU that have been newly tested on animals, as long as the tests were conducted on animals in countries outside the EU.

The Copernicus Regulation has been approved by the European Parliament and the Council and entered into force on 25 April 2014.

On 31 March 2014, the International Court of Justice in The Hague announced their binding decision today in the landmark case of Australia v. Japan, ruling that Japan’s JARPA II whaling program in the Antarctic is not for scientific purposes and ordering that all permits given under JARPA II be revoked.

On 5 December 2013, the Council of the EU adopted the new Directive laying down basic safety standards for protection against the dangers arising from exposure to ionising radiation. The directive takes into account the latest scientific findings and aims for comprehensive radiation protection. The Euratom directives on the protection of the health of the general population and workers, patients, outside workers, on informing the general public in case of radiological emergencies and on the control of high-activity radioactive sources have been repealed. Member states have to transpose the directive into national law within the next four years.

On 24 May 2013, a restriction on the use of three pesticides belonging to the neonicotinoid family was adopted by the European Commission. These pesticides (clothianidin, imidacloprid and thiametoxam) were identified as being harmful to Europe’s honeybee population. This restriction will enter into force as from 1 December 2013 and will be reviewed, at the latest, within two years. It targets pesticides used in the treatment of plants and cereals that are attractive to bees and pollinators.

On 20 November 2013, the Council and European Parliament signed into law the Decision on a 7th EU Environment Action Programme, which will guide EU policy action on environment and climate policy for the next seven years.

On 17 October 2013, the European Commission took Germany to Court over a loophole in its legislation on access to justice in environmental matters. Under EU legislation, Member States must ensure a legal review procedure for decisions taken in the context of the Environmental Impact Assessment Directive and the Industrial Emissions Directive. The Commission is concerned at apparent gaps in German legislation in this area, which may be restricting citizens' access to justice. On the recommendation of Environment Commissioner Janez Potočnik, the Commission is therefore taking Germany to the EU Court of Justice.

France's constitutional court has upheld a ban on hydraulic fracturing, ruling that the law against the energy exploration technique known as "fracking" is a valid means of protecting the environment. The court in Paris said on its website on 11 October 2013, that the 2011 law "conforms to the constitution" and is not "disproportionate".

Directive 98/8/EC of the European Parliament and of the Council on the placing on the market of biocidal products was adopted in 1998. According to the Directive, Member States had to transpose the rules before 14 May 2000 into national law. The Biocidal Product Directive aims to harmonise the European market for biocidal products and their active substances. At the same time it aims to provide a high level of protection for humans, animals and the environment. The new Regulation on Biocidal products (EU) No 528/2012 was adopted on 22 May 2012, and applies from 1st September 2013. It repeals and replaces the former Directive.

The new provisions on electromagnetic fields and the proof procedure under telecommunications law entered into force on 22 August 2013. The ordinance amending the existing provisions has now been adopted by the Federal Government with the consent of the Bundestag and Bundesrat and contains in particular regulations on precautionary health protection.

The act governing the selection of a repository site for high-level radioactive waste (Standortauswahlgesetz) entered into force on 27 July 2013.

On 21 May 2013, the European Parliament gave its green light to the new directive on the safety of offshore oil and gas operations. The new rules will require oil and gas firms to prove their ability to cover potential liabilities deriving from their operations and to submit major hazard reports and emergency response plans before operations can start.

On 25 April 2013 the General Court of the European Union confirmed the validity of the Regulation on the marketing of seal products.

On 11 March 2013,the last deadline to phase out animal testing for cosmetic products in Europe entered into force. Directive 2003/15/EC introduced provisions in relation into animal testing into the Cosmetic Directive 76/768/EEC. Accordingly, animal testing in the Union is already prohibited since 2004 for cosmetic products and since 2009 for cosmetic ingredients ('testing ban'). As from March 2009, it is also prohibited to market in the Union cosmetic products containing ingredients which have been tested on animals ('marketing ban'). For the most complex human health effects (repeated-dose toxicity, including skin sensitisation and carcinogenicity, reproductive toxicity and toxicokinetics) the deadline for the marketing ban was extended to 11 March 2013.

On 3 March 2013, new legislation came into effect to counter the trade in illegal timber. The new EU Timber regulation will affect everyone in the wood trade. It prohibits the placing of illegally harvested timber on the European market in an effort to tackle the problem of illegal logging across the world. The new law affects both imported and domestically produced timber and timber products, and it covers an extensive range of products, from paper and pulp to solid wood and flooring.

On 27 April 2011 the European Commission adopted a Decision on how free emission allowances should be allocated from 2013 to industrial installations covered by the EU Emissions Trading System (EU ETS). Although auctioning will become the main principle for allocating allowances as of 2013, a proportion of free allowances will still be given to industry until 2020, notably to reduce costs for installations in sectors deemed to be exposed to significant competition from outside the EU. The Decision sets out the rules, including the benchmarks of greenhouse gas emissions performance, to be used by the Member States in calculating the number of allowances to be allocated for free annually in these sectors.

On 31 December 2012, the Euro VI norm entered in force. Thanks to new European legislation nitrogen oxides and dust emitted from new types of trucks and buses will be lowered. It means a reduction of 80% in emissions of nitrogen oxides and 66% in particulate matters.

New rules that entered into force on 13 August 2012, will see EU citizens better informed about major threats posed by industrial plants in their immediate vicinity. The rules are part of an otherwise technical update of the Seveso Directive. The Directive obliges Member States to draw up emergency plans for areas surrounding industrial installations where very large quantities of dangerous substances are to be found.

On 13 August 2012, the improved rules on the collection and treatment of e-waste entered into force introduces a collection target of 45 % of electronic equipment sold that will apply from 2016 and, as a second step from 2019, a target of 65 % of equipment sold, or 85 % of electronic waste generated. Member States will be able to choose which one of these two equivalent ways to measure the target they wish to report. From 2018, the Directive will be extended from its current restricted scope to all categories of electronic waste, subject to an impact assessment beforehand.

On 17 July 2012 new rules on biocides entered into force. The new regulation offers more efficient provisions for the authorisation of products, the requirements and sharing of product-related data. It will save industry an estimated 2.7 billion euros over a period of 10 years. The new provisions also reduce animal testing by making data sharing compulsory and encouraging a more flexible and integrated approach to testing. A dedicated IT platform (the Register for Biocidal Products) will be used for submitting applications as well as recording decisions and disseminating information to the public. Protection will also be extended as the new legislation will now include goods and materials which are treated with biocidal products, such as furniture and food packaging. The European Chemicals Agency (ECHA) will be given a key role in the administration of this regulation.

As from 1 July 2012, the EU organic logo will be obligatory on all pre-packaged organic food products produced in EU Member States which meet the necessary standards. The logo will stay optional for non-packed and imported organic products. Other private, regional or national logos will continue to be allowed to appear alongside the EU label.

On 14 June 2012, the Seveso III rules were approved by the European Parliament with 593 votes in favour, 10 against and 7 abstentions.

With the votes of the ruling Conservative/Liberal coalition, the German Bundestag (Parliament) adopted an amendment of the Combined Heat and Power Act (KWKG – ref. no. 17/8801 as amended by the Economics Committee, ref. no. 17/9617). The bill aims to increase the share of combined heat and power in the German energy mix from roughly 15% to date to 25% by 2020.

On 4 April 2012 the Federal Administrative Court in Germany backed the night-flight ban at Frankfurt airport.

On 10 February 2012, the Council adopted a regulation following an agreement with the European Parliament in order to restrict the use of phosphates and other phosphorus compounds in consumer laundry and automatic dishwasher detergents in order to reduce the level of phosphorus poured into the waters. In addition to domestic detergents, the scope of the regulation also includes detergents used in public laundrettes. The limit value for consumer laundry detergents is set at 0.5 grams of phosphorus per washing process in a standard washing machine, and it will be applicable as from 30 June 2013. The limit value for consumer automatic dishwasher detergents is set at 0.3 grams ofphosphorus in a standard dosage, and it will be applicable as from 1 January 2017.

A draft overall compromise package on the Regulation on the Placing on the market and use of biocidal products was agreed by the Permanent Representatives Committee on 23 November 2011. After the 2nd reading plenary vote by the European Parliament on 19 February 2012 and the adoption by the Council, the new law will apply as of September 2013.

The European Parliament and European Council have reached an agreement in December 2011 regarding the revision of the WEEE Directive. The agreement was approved by the European Parliament on 19 January 2012.

The revision of the Renewable Energy Sources Act, adopted by the Bundestag on 30 June 2011 and passed by the Bundesrat on 8 July 2011, also made comprehensive amendments to the Biomass Ordinance (BiomasseV) which become effective on 1 January 2012.