EU environmental law

Christoph Hermes
Europa-Institut, Saarland University,
2021
International aspects of EU
environmental law
Topics of session 7

(NB: The nature protection topic originally foreseen for session 7 will be for
session 8)

 The role of the EU in the making of international environmental law

 Conflicts between international law and EU environmental regulation

Introduction: global environmental
problems
 Most environmental problems have a transboundary nature and often a global
scope
 Examples:
Introduction: global environmental
problems
 Global environmental problems can only be addressed effectively through
international co-operation
 EU is an active participant in the elaboration and implementation of
multilateral environmental agreements (MEAs) and other environmental
negotiations and processes
 Art. 191(1) TFEU:
“Union policy on the environment shall contribute to pursuit of the following
objectives: (…)
- promoting measures at international level to deal with regional or worldwide
environmental problems, and in particular combating climate change.”
EU in international environmental
agreements
 EU already ratified many international environmental agreements:
 at global level (e.g. multilateral agreements negotiated under the auspices of the UN)
 at regional level (e.g. in the context of the UN Economic Commission for Europe or the Council of Europe)
 at sub-regional level (for instance for the management of seas or transboundary rivers)

 Subject matters addressed by these agreements

 biodiversity and nature protection
 climate change
 protection of the ozone layer
 desertification
 management of chemicals and waste
 transboundary water and air pollution
 environmental governance (including impact assessments, access to information and public participation)
 industrial accidents
 maritime and river protection
 environmental liability
Examples: biodiversity and nature
protection
 Convention on the Conservation of European Wildlife and Natural Habitats
(“Bern Convention”) (Council of Europe) of 1979
 Convention on Biological Diversity (CBD) (UN) of 1992
 Cartagena Protocol on Biosafety of 2000
 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing
of the Benefits Arising from their Utilization of 2010
 Convention on the Conservation of Migratory Species of Wild Animals (CMS or
“Bonn Convention”) (UNEP) of 1979
 Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES Convention) of 1973
Examples: climate change

 Framework Convention on Climate Change (UNFCCC) of 1992

 Protocol to the United Nations Framework Convention on Climate Change
(The Kyoto Protocol) of 1997
 Paris Agreement of 2015
Requirements for EU participation in
MEAs
 International law:
 Treaty must foresee participation not only of states, but also of “regional economic
integration organizations”
 See e.g. Gaborone amendment to CITES enabling EU to become party (in 2015)
 EU law:
 Procedure: Art. 218 TFEU on negotiation, signing and conclusion of Union
agreements
 Legal basis for conclusion:
 Art. 192(1) TFEU (environment)
 Other if ”centre of gravity” lies in another area (e.g. fisheries policy, trade)
Mixed agreements

 Subject matter of an agreement falls entirely within exclusive Union competence

 Union will conclude the agreement alone (“EU-only agreement”)
 Areas of exclusive competence (Art. 3 TFEU): e.g. trade, fisheries, conclusion of agreement
may affect common rules
 Subject matter of an agreement falls (partly) within shared Union competence
 Member States will usually insist that agreement is concluded by Union and Member States
(“mixed agreement”)
 Areas of shared competence (Art. 4 TFEU): e.g. environment
 Problems of “mixed agreements”:
 Must be ratified by EU Member States in accordance with their domestic ratification procedures
(see e.g. Walloonia region blocking ratification of CETA)
 Roles of EU and Member States in external representation (Who speaks? Who votes?)
 Internal legal status of the different “spheres” of the mixed agreement (see e.g. C-240/09
Slovak bear)
 Most MEAs were concluded as mixed agreements
Possible conflicts between international
law and EU environmental regulation

 Videos about the palm oil dispute:

 https://www.youtube.com/watch?v=mqaGnoM5HkE

 https://www.youtube.com/watch?v=mdyuwsHcL1Y
The palm oil dispute: facts (simplified)
 Palm oil, mainly produced in Indonesia and Malaysia, used inter alia for biofuels in
EU
 Connection between rapid expansion of palm plantations and deforestation;
impact on climate
 EU measures (the Renewable Energy Directive 2018/2001 and a Commission
delegated act adopted in 2019 on its basis):
 criteria for determining biofuels with a high risk of “Indirect Land Use Change” (ILUC)
 high ILUC-risk biofuels: > 10% of the recent expansion of the production area has taken
place on land with high carbon stock (e.g. rainforests); assessed based on global average
 high ILUC-risk biofuels will be phased-out until 2030 (i.e. will not count towards meeting
EU renewable energy targets)
 logic: massive expansion into land with high carbon stock releases considerable amount
of GHG emissions, thus negating emission savings from use of biofuels instead of fossil
fuels
 Currently: palm oil is only high ILUC-risk biofuel (expansion share into carbon rich
areas is 45% at global level); compare soybean with global expansion share of 8%
(but much higher values in some countries)
 Indonesia considers that the EU measures unfairly target palm oil
The palm oil dispute: the World Trade
Organization (WTO) case

 Indonesia believes that the EU violates its obligations under WTO Agreements
 On 24 March 2020, it submitted a panel request to the WTO claiming that the
EU measures are inconsistent, inter alia, with:
 Article I:1 GATT 1994 (Most-Favoured-Nation Treatment):
“With respect to (...), any advantage (…) granted by any contracting party to any
product originating in or destined for any other country shall be accorded immediately
and unconditionally to the like product originating in or destined for the territories of
all other contracting parties.“
 Article III:4 GATT 1994 (National Treatment):
“The products of the territory of any contracting party imported into the territory of
any other contracting party shall be accorded treatment no less favourable than that
accorded to like products of national origin in respect of all laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. (…).”
The palm oil dispute: WTO dispute
settlement
 1. Consultations
 2. Panel proceedings
 3. Appellate review
 4. Implementation and
enforcement
The palm oil dispute: the ”linkage” between
trade and environmen in the WTO

 Watch video with interviews of WTO scholars on relationship of trade and

environment under the WTO Agreemens:
 https://www.youtube.com/watch?v=IWjvlP0w04U
WTO jurisprudence on trade and
environment I
 WTO members can adopt trade-related measures aimed at protecting the
environment, subject to certain specified conditions
 Certain measures taken to achieve environmental protection goals may, by their
very nature, restrict trade and thereby impact on the WTO rights of other
members (e.g. violate non-discrimination rules, prohibition of quantitative
restrictions)
 WTO law contains exceptions to strike balance between the right of members to
take regulatory measures, including trade restrictions, to achieve legitimate policy
objectives (e.g. the protection of human, animal or plant life and health, and
natural resources) and the rights of other WTO members under basic trade rules
(“regulatory space”)
 WTO dispute settlement has addressed a number of disputes in this area:
 US — Gasoline case (clean air)
 US — Shrimp case (turtles) etc.
WTO jurisprudence on trade and
environment II
 Thus, even if a measure is found to be inconsistent with basic WTO disciplines, it
may be justifiable under one of the exceptions, for example, if it pursues an
environmental objective and if its application does not reveal a protectionist
intent
 Article XX (General Exceptions) lays out a number of specific instances in which
WTO members may be exempted from GATT rules:
 Articles XX(g) allows WTO members to justify GATT-inconsistent measures if these relate
to the conservation of exhaustible natural resources
 The introductory paragraph of Article XX (its “chapeau”) has been designed to prevent
the misuse of trade-related measures:
 an environmental measure may not be “applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or
a disguised restriction on international trade.”
 seeks to ensure that, by allowing a measure to be inconsistent with GATT rules through the use of
exceptions, protectionism is not introduced through the back door.
The palm oil dispute: Art. XX(g) GATT 1994
 Article XX GATT 1994 (General Exceptions)
„Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a disguised restriction on international
trade, nothing in this Agreement shall be construed to prevent the adoption or
enforcement by any contracting party of measures:
(...)
(g) relating to the conservation of exhaustible natural resources if such measures are
made effective in conjunction with restrictions on domestic production or
consumption;
(…).”