1. EU LEGISLATION ON WASTE 2011- European Commission WORKSHOP ON EU LEGISLATION WASTE © 2010 Microsoft Corporation. All rights reserved. EU environmental law and national courts : an introduction EU LEGISLATION ON WASTE

2. 2011- European Commission 2 Objectives and legal basis for EU environmental law Art 3(3) TEU – objectives of the EU: The Union shall work for sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. Art 191, 192 and 193 TFEU (replacing Articles 174, 175, 176) Art 191(4): a new legal basis for climate change Art 194: a new legal basis for EU energy policy

3. EU LEGISLATION ON WASTE 2011- European Commission 3 Role of the Commission: –Guardian of the Treaties: Art 17 TEU –Specific procedures in Art 258 and 260 TFEU Role of national judges and role of the Court of Justice of the European Union –The concept of « direct effect » –Interpretation of national law in conformity with EU environmental law –Preliminary rulings Two ways to ensure compliance with EU law:

4. EU LEGISLATION ON WASTE 2011- European Commission 4 The mission of the Commission Article 17 TUE The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union.(…) 2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise (…)

5. EU LEGISLATION ON WASTE 2011- European Commission 5 Bringing a case to the Court of Justice Article 258 TFEU «If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. »

6. EU LEGISLATION ON WASTE 2011- European Commission 3 types of infringement procedures: Non-communication cases Non-conformity cases Bad-application cases 6

7. EU LEGISLATION ON WASTE 2011- European Commission 7 2 months for reply Infringement procedure in practice Court of Justice Letter of formal notice Reasoned Opinion Technical meetings 2 months for reply Technical meetings Judgement of the ECJ, financial penalties Art. 260/3 TFEU

8. EU LEGISLATION ON WASTE 2011- European Commission 88 Infringements of EU ENV law by country (1 September 2010) 4 6 8 10 11 12 13 19 21 23 26 31 39 42 52 0 10 20 30 40 50 60 LV NL SI MT DK AT CYDE FI LU SK EE HU LT SE BG UK BE CZ FR PL PT RO IE EL ES IT

9. EU LEGISLATION ON WASTE 2011- European Commission 99 Infringement of EU environmental law by topic (1 September 2010) Impact 10% Water 23% Information 3% Air 15% Chemicals 15% Nature 19% Waste 15%

10. EU LEGISLATION ON WASTE 2011- European Commission 10 Second referral to the Court Article 260(2) TFEU If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.

11. EU LEGISLATION ON WASTE 2011- European Commission In practice, both a lump sum and a daily penalty will be asked (C-304/02; Commission v. France) Daily penalty = uniform flat rate per day multiplied by factors reflecting duration and seriousness of breach and a factor ensuring a deterrent effect of the penalty

12. EU LEGISLATION ON WASTE 2011- European Commission 12 Second referral to the Court in practice 2 months for reply Court of Justice Letter of formal notice Technical meetings Penalties and lump-sum Second judgment of ECJ First judgment of ECJ

13. EU LEGISLATION ON WASTE 2011- European Commission 13 Article 260 cases involving EU environmental law by country (1 September 2010) 1111 222 33 4 55 8 11 12 0 2 4 6 8 10 12 14 ATCZEENLLUMTSEBEUKESFRPTELIEIT

14. EU LEGISLATION ON WASTE 2011- European Commission 14 Action at the level of national courts and the concept of direct effect A provision of EU law has direct effect (can be invoked and relied on by individuals before national courts), if: – it is intended to confer rights on individuals and – if it is sufficiently clear, precise and unconditional National judges are « EU law judges » Applies to all binding EU law –Treaty provisions –Regulations –Decisions

15. EU LEGISLATION ON WASTE 2011- European Commission 15 Direct effect and directives –Vertical direct effect of directives (C-8/81-Becker) –No inverse vertical direct effect of directives (Rs. 80/86- Kolpinghuis Nijmegen) –Horizontal direct effect (Rs. 152/84-Marshal; Rs. C- 443/98-Unilever) –Horizontal side-effects of vertical effect–triangular situations (Rs. C-201/02-Wells) Consequences of direct effect: Integral application of EU law

16. EU LEGISLATION ON WASTE 2011- European Commission 16 The doctrine of consistent interpretation Obligation to interpret national law in conformity with EU law (C-14/83 Von Colson) Even in a litigation between private parties (C- 106/89 Marleasing) All national law, even if it pre-dates the directive and is not designed to implement it (Marleasing + C- 62/00 Marks&Spencer) in so far as possible/ contra lege interpretation not required

17. EU LEGISLATION ON WASTE 2011- European Commission Only after the expiry of the time limit for transposition (C-212/04 Adeneler) –Inter-Environment Wallonie (C-129/96) and Mangold (C-144/04) National courts must do it also on their own motion (C-72/95 Kraaijeveld) Transposition of directives through consistent interpretation? (C-144/99, Commission vs. Netherlands)

18. EU LEGISLATION ON WASTE 2011- European Commission 18 The preliminary reference mechanism Art 267 TFEU (old article 234 TEC) interpretation of EU Treaty and interpretation and validity of acts of EU institutions (even non-binding) Obligation for Supreme courts, possibility for ordinary courts Function and importance of the preliminary reference mechanism: the co-operation between national courts and ECJ

19. EU LEGISLATION ON WASTE 2011- European Commission 19 The preliminary reference mechanism (2) No obligation to refer where: Precedent i.e. ECJ has already ruled on the matter Doctrine of acte-claire: The question raised is irrelevant or the correct application of EU law is so obvious as to leave no scope for any reasonable doubt as to the manner to interpret it (C-283/81 CILFIT)

20. EU LEGISLATION ON WASTE 2011- European Commission 20 Preliminary references by country (end of 2009) 2004-2009 1961-2003

21. EU LEGISLATION ON WASTE 2011- European Commission 21 Conclusion : 2 complementary ways to ensure compliance with EU law: EU law implementation problem Judgement on failure to fulfil obligations Referral to a national Court National judge Commission is informed or Commission identifies the problem Commission Article 267 TFEU Article 258 TFEU Court of Justice of the European Union Judgement on preliminary reference Ruling of national Court

22. EU LEGISLATION ON WASTE 2011- European Commission 22 Thank you for your attention!