Environmental Law

The law of Europe relating to environmental law issues can be divided into three sub-headings: (i) Regulations and Directives addressing particular issues of environmental protection against pollution from traditional sources (industrial waste and waste storage, transportation and disposal, polluted water, gases and particulates that cause air pollution, packaging material waste, etc.) and non-traditional sources (such as radioactive substances); (ii) Regulations and Directives addressing particular issues of environmental protection from release of genetically modified organisms and micro-organisms, such as Directive 2001/18/EC (please see Chapter on "Bioscience"); and (iii) Regulations and Directives embodying a substantial array of measures designed to protect Europe's wildlife and plant species and their natural habitats (not covered herein but, see Directive 92/43/EEC in the Chart on pages 92-93, serving as one example, which addresses conservation of flora and fauna natural habitats). There are also national laws in each of the above categories. (Environmental regulations may also affect real estate and construction matters. Please see the Chapters on those subjects).

There are also numerous international treaties and conventions which are relevant to environmental matters. Some of these are very broad in scope, such as the 1992 Rio de Janeiro Convention on biological diversity, the 1973 MARPOL Convention for the prevention of pollution from ships and the 1985 Vienna Convention on the protection of the ozone layer (together with its Montreal and Beijing Protocols). Others apply only to specific regions but in some cases very extensive regions, such as the 1976 Barcelona Convention for the protection of the Mediterranean Sea against pollution, the 1979 Geneva Convention on long-range transnational air pollution and the 1993 Lisbon Co-operation Agreement for the protection of the coasts and waters of the north-east Atlantic Ocean from pollution. Many others are focussed upon specific but somewhat less vast areas, such as the 1996 Wroclaw Convention for the protection of the Oder river, the 1994 Sofia Convention and 1987 Regensburg Agreement for the protection and management of the Danube river basin, the 1992 Helsinki Convention for the protection of the marine environment of the Baltic Sea, the 1991 Salzburg Convention for the protection of the Alps, the 1990 Magdeburg Convention for the protection of the Elbe river and the 1976 Bonn Convention for the protection of the Rhine River against chemical pollution. Some conventions focus more closely upon specific issues than on specific geographic regions, such as the 1994 Basel Convention for the control of transfrontier movements of toxic waste and the 1998 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (entered into force on 30 October 2001).

Many matters of direct relevance to business and the environment are dealt with in EU Secondary Legislation and in national law. There are various enforcement mechanisms, involving fines, penalties, criminal sanctions and injunctive relief, in the event of the EU Directives or the national legislation not being complied with, whether by a private business or by a member country. See, for example, EC v. Germany (Case C-131/88, decided 28 February 1991) [1991 ] ECR 1-825; EC v. France (Case C-252/85, decided 27 April 1988) [1988] ECR 2243. Enforcement is carried out by the relevant EU or national authority, rather than by affected private parties, although they may sometimes have a separate civil cause of action against polluters, whether private or public.

There are very similar rules in Norway and Switzerland. For example, in Norway, the central legislation is Act No. 6 of 13 March 1981 (amended by Act 36 of 21 June 1996 and otherwise) concerning protection against pollution and concerning waste ("Lov om vern mot forurensninger og om avfall (Forurensningsloven)"= the Pollution Control Act), administered by the Ministry of the Environment ("Milj0verndepartementet"), which also administers Act No. 38 of 2 April 1993 relating to the production and use of genetically modified organisms and the Regulations relating to Environmental Impact Assessment (Royal Decree of 21 May 1999).

The primary Swiss legislation is to be found in the federal Act of 7 October 1983 on the protection of the environment ("Loi federale du 7 octobre 1983 sur la protection de l'environnement"). There is also a federal Act of 1 July 1966 on the protection of nature and landscapes ("Loi federale du 1 juillet 1966 sur la protection de la nature et du paysage"). Ancillary legislation includes in particular the federal Ordinance of 19 October 1988 relating to environmental impact assessments, the federal Ordinance of 27 June 1990 relating to the designation of organisations entitled to appeal decisions in the fields of environmental protection and the protection of nature and landscapes; the federal Ordinance of 25 August 1999 on the use of organisms in the environment and federal Ordinance of 27 February 1991 on protection against major accidents (applies to (i) undertakings generating substances, products or waste beyond certain defined quantities; (ii) undertakings using GMOs or pathogenic micro-organisms; (iii) railway installations used in connection with the transportation of dangerous substances; (iv) heavy traffic roads used in connection with the transportation of dangerous substances; and (v) protecting the Rhine river when used in connection with the transportation of dangerous substances.) There is also a whole body of Swiss federal legislation on the production and use of nuclear energy.

An example of recent case law involving environmental law is the judgement rendered by the Swiss Federal Tribunal on 14 March 2003 in the matter Club Alpin Suis.se v. Societe de Developpement Agro-Touristique de Trient-Finhaut [ATF 1A. 113/2002] (successful action by public interest plaintiffs to revoke environmental permit granted by Swiss federal authorities in connection with commercial development, not granted in accordance with procedures required at local level).

Swiss legislation and case law (as is also true in the case of Norway) are closely approximate to the EU norms.

The New EU Accession Countries must adopt EU environmental legislation into their national law, as part of the acquis communautaire, and have been in the process of doing so. For example, this is reflected in Poland in the Governmental Policy Statement on Environmental Protection of 1991, as well as in the Physical Management Act and the Ministers' Council Order dated 29 March 1994 (MP no. 23 position 188). It is reflected in Hungary in Article 18 and clause D of Article 70 of the Constitution and in numerous specific pieces of legislation, such as Government Decree 152/1995 on Environmental Impact Assessment and in Slovenia in various provisions of the Constitution and in the Environmental Protection Act. In Bulgaria, these matters are addressed primarily in Articles 15, 18 and 55 of the Constitution and in the Environmental Protection Act, the Act on the Protection of Air, Water and Soil, the Act on Water Resources, the Act on Nature Protection, the Act on Public Health and the Criminal Code. Collectively, such legislation adopts EU norms, principles and procedures, including the "polluter pays principle", Eco-labelling reward programs, BATNEEC (best available technology not entailing excessive costs) and the right of the public to have access to relevant environmental information.

Particular Areas of EU Environmental Protection. Most EU Directives address specific pollution issues and do so in considerable technical detail. For example, Directive 96/62/EEC relates to ambient air quality, whereas Directive 80/779/EEC sets sulphur dioxide and black smoke value limits and Directive 92/72/EEC addresses ozone concentrations. Directives 89/369/EEC and 89/429/EEC deal with emissions from municipal waste incinerators and Directive 84/360/EEC deals with industrial installation air emissions. Please also see Directive 88/609/EEC (large combustion installations) and Directive 94/67/EEC (incineration of hazardous waste).

Motor vehicle air emissions are the subject of Directives 70/220/EEC and 85/210/EEC. Please also see Directive 89/458/EEC (motor vehicle emissions tax incentives) and Directive 94/63/EEC (volatile organic compound (VOC) emissions).

Packaging waste is dealt with in Directive 85/339/EEC (liquid beverage containers), Directive 94/62/EEC (packaging and packaging waste) and hazardous waste in general is the topic of Directive 91/689/EEC, but please also see Directive 75/442/EEC (waste), Directive 78/319/EEC (toxic waste) and Directive 91/156/EEC (waste). Landfills and waste are covered by Directive 99/31/EC.

Matters relating to pesticides are addressed in Directive 91/414/EEC (pesticides) and Directive 2002/7I/EC (maximum levels for pesticide residues).

Information access and transparency have also been the subject of various Directives, such as Directive 67/548/EEC (labelling of dangerous substances), Directive 85/337/EEC (environmental impact assessments in public and private projects), Directive 90/313/EEC (free access to environmental information), Directive 91/692/EEC (standardisation of environmental reports) and Directive 93/67/EEC (risk assessment for various substances).

Special Directives deal with radioactive substances and ionisation, such as Directive 92/3/EEC (shipment of nuclear waste) and Directive 96/29/EEC (safety standards and ionising radiation), whereas Directives such as 82/501/EEC and 96/82/EEC have dealt more generally with industrial accident prevention issues and Directive 96/61/EEC sets forth an integrated approach to pollution prevention and control ("IPPC").

Please also see "popular name" chart on page 27.

Some national characteristics. All European countries have laws which track the foregoing or in some cases are more environmentally protective.

For instance, in France the broad principles for environmental protection have been set out in the "Barnier law" ("loi Barnier") of 2 February 1995 (incorporated into Article L. 110-1 of the Environment Code) and this is the conceptual framework around which other French legislative texts are based, in accordance with EU requirements. For instance, the principle that

the "polluter pays" ("principe pollueur-payeur") is set forth in Article 110-1 -II of the Environment Code and the "precautionary principle" ("principe de precaution") required by the Maastricht treaty is embodied in Article 110-1 of the Environment Code.

Anticipating EU requirements regarding public access to environmental information, the "Bouchardeau law" (loi Bouchardeau) of 12 July 1983 (and its related implementation decree 85-453 dated 23 April 1985) requires public inquiries regarding proposed activities which may impact upon the environment, including matters relating to dangerous substances. French law has required environmental impact assessments since 1977 (Decree 77-393 of 28 March 1977, as amended, and Decree of 12 October 1977).

How some of these laws work in practice is illustrated by the following sampling of reported French court cases. Criminal case no. C 01-86-7624 (decided 26 February 2002) BICC 555 (1 May 2002, no. 444) (criminal liability for water pollution via disturbance of contaminated mud creating dispersion of pre-existing substances); Castellazzi, Criminal case no. 0086 ! 10 (decided 21 November 2001) (Lettre Juris-classeur April 2002, page 14 (international transport of prohibited waste without prior notification); Association Ecowpa-Franee v. Ministere de I 'Agriculture etc., TA Toulouse 001.346 (decided 2 December 2000) (cancellation of permit regarding dissemination of GMOs for failure, inter alia, to provide precise data as to the localities to be involved and methods for dealing with possible environmental accidents); Association Greenpeace France v. Ministere de VAgriculture etc., [2000] ECJ 21 March 2000 (AJDApage 448 (precautionary principle)).

In Italy, environmental matters are addressed in a number of comprehensive legislative measures of which some principal ones are Law No. 349 of 8 July 1986 (environmental damage, in general), Decree No. 22 of 5 February 1997 (the so-called "Ronchi Decree", implementing Directives 91/156/EEC, 91/689/EC and 94/62/EEC, regarding the recycling and management of waste and creating CONAI, the Italian nationwide consortium for management of waste and packaging materials) and Decree No. 246 of 24 May 1999 (regarding the prevention of accidental spills from underground storage tanks).

Decree No. 152 of 11 May 1999 implements both Directive 91/271/EEC (urban wastewater treatment) and Directive 91/676/EEC (protection of water against nitrate pollution, from agricultural sources) and the Seveso II Directive (Directive 96/82/EC) is implemented by Decree No. 334 of 17 August 1999.

Also to be mentioned are Law No. 500 of 30 December 1999 (implementing Directive 99/31 /EC on landfill waste), Decree No. 471 of 25 October 1999 (soil sanitation), Decree No. 351 of 4 August 1999 (air pollution, implementing Directive 96/62/EC), Decree No. 209 of 22 May 1999 (implementing Directive 96/59/EC regarding polychlorinated biphenyls and terphenyls (PCB/PCT) and Decree No. 163 of 21 April 1999 (environmental and sanitary criteria for urban areas in relation to automobiles, the so-called "Benzene Decree").

A sampling of Italian court cases in connection with the foregoing is representative of the law of Europe on these subjects, as a whole:

Italian Constitutional Court, 22 May 1987, no. 210, in Riv. giur. amb., 1987, 334 and Italian Constitutional Court. 30 December 1987, n. 641, in Foro it., 1988, I, 694 (broad interpretation of scope of environmental safeguards mandated by Law No. 349); Italian Constitutional Court (judgement no. 641 of 30 December 1987) and Court of Cassation 1 September 1995, n. 9211, Sezione I (possibility of absolute or joint liability under Law No. 349), although such liability is not viewed as creating US-style punitive damages (Pret. Milano-Rho, 29 June 1989, in Foro it. 1990, II, 526) and there is ample constitutional support for the principle that the polluter pays (Italian Constitutional Court, 29 December 1988, No 1162, in Riv. giur. amb., 1990, 267). It has long been established that criminal penalties fit into the legislative program (Pret. Rovigo, 4 December 1989, in Foro it. 1990, II, 517; and also see Trib. Vallo della Lucania, cit; Cass. pen. 21 July 1988, in Riv. pen., 1989, 521). Only the government (whether national or regional) is normally entitled to recover damages for environmental wrongdoing (Lower Court of Lendinara (judgement of 26 April 1988, in Foro it., 1989, II, 193; Pret. Rovigo, 4 December 1989, in Foro, it., 1990, II, 517) and this is the established view of the Italian Court of Cassation (Cass. 24 January 1989, in Cass. pen., 1989, 2050).

Similar cases are found in many other European jurisdictions:

Belgium - Ghent 15 March 2002, NjW 2002, liv. 9, 316 (applying Flemish Council Decree of 28 June 1985, regarding anti-pollution, and invoking a general obligation of prudence under the specific circumstances, even if BATNEEC rules per se are satisfied); Antwerp (9e ch.) 28 March 2001, T.M.R. 2002, liv. 4, 369 (applying Flemish Council Decree of 28 June 1985 and Vlarem I, applicant not bound retroactively by permit with terms not yet issued); Corr. Termonde (17e ch.) 25 October 2000, T.M.R. 2001, 272 (applying Vlarem II, no retroactive effect of stricter rules than when the ground pollution occurred); Corr. Ghent 22 February 2000, T.M.R. 2001, 488 (applying Flemish Council Decree of 28 June 1985, permit may not grant discretion or variances when the terms of the Decree itself are mandatory, even though the deviation is "reasonable"); (Mellery case [Villiers la Ville, Waals Gewest, Franse Gemeenschap], Corr. Antwerp 21 September 1994, T.M.R., 1995, 62 (criminal chamber of Court of First Instance, Antwerp, criminal aspects of toxic waste disposal causing soil pollution).

Germany - BGHZ [German Supreme Court] I ZR 293/99, 26 September 2002 (liability in connection with disposal of scrap automobile components and waste); BGHZ [German Supreme Court] I ZR 272/99, 25 April 2002 (liability in connection with advertising construction in wood versus stone as being more ecological); BGHZ [German Supreme Court] 1992, page 143 (liability for negligence in causing heavy corrosion damages to cars parked near iron smelter with illegal airborne emissions); OLG [Upper Regional Court] Koblenz VuR 1988, page 152 (selling wood protection varnish which contained toxic pentachlorophenol and formaldehyde); OLG [Upper Regional Court] Celle VersR 1981, page 66 (recognition of typical epidemiological causation evidence to establish liability); BGH [German Supreme Court] NJW 1976, page 46 (disposal of hazardous waste which contaminated nearby groundwater).

Scotland - RHM Bakeries (Scotland) Ltd. v. Strathclyde Regional Council [1985] SLT 3 (decided 20 December 1983) (common law liability upon showing of fault).

The work of the ECJ in this area is also ongoing. EC v. Portugal (Case C-392-99, decided 10 April 2003, application of Directive 74/439/EEC to disposal of polluted oil)); EC v. Spain (Case C-333/01, decided 13 March 2003, failure timely to implement Directive 90/291/EEC regarding contained use of genetically modified micro-organisms (GMMOs)); EC v. Finland (Case C-240-00, decided 6 March 2003, failure to take certain measures designed to protect wild birds and their habitats, as required by Directive 79/409/EEC); EC v. Greece (Case C-83/02, decided 6 March 2003, application of Directive 96/59/EEC to disposal of polychlorinated biphenyls and terphenyls (PCB/PCT)).

Acronym Jurisdiction [ Meaning
APAT Italy Agenzia per la protezione dell'ambiente e per i servizi tecnici [Italian Environmental Protection Agency]
BOMATE France Bulletin officiel du ministere de l'amenagement du territoire et
    de l'environnement [Official Journal of the French
    Environmental Ministry]
CONAI Italy Consorzio Nazionale Imballaggi [Italian National Packaging Consortium]
IPPC EU Integrated pollution prevention control
LAAPC UK Local Authority Air Pollution Control
POS France Plan d'occupation des sols [plan for site use/occupation]
Ronchi Italy Legislative Decree no. 22 dated 5 February 1997 implementing Directives 91/156/EEC, 91/689/EEC and
    94/62/EEC, regarding recycling and handling of waste
SDAU France Schema directeur d'amenagement et
    [Urban Development Planning Master Plan]
Seveso EU Seveso I (Directive 82/501/EEC) and Seveso II (Directive 96/82/EEC) (named after a specific industrial
    accident in 1976 involving dioxin (TCDD) release)
SYKE Finland Soumen ymparistokeskus [Finnish Environment Institute]
TGAP France Taxe generale sur les activites polluantes [general tax on pollution activities]
UIG Austria, Umweltinformationsgesetz [Environmental Information Act, 1 July 1993 (Austria), 8 July 1994 (Germany)]
  Germany (per Directive 90/313/EEC)
UPVG Germany Umweltvertraglichkeitsprufungsgesetz [Law dated 5 September 2001 for testing/assessing environmental
    tolerance for products and substances]
Vlarem I Belgium Vlaams Reglement Milieuvergunning I + 11 (two Belgian [Flemish regional] laws relating to environmental
+11   protection and permit applications)
VROM Netherlands Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [Netherlands Ministry of Spatial
    Planning, Housing the Environment]
WHG Germany Wasserhaushaltsgesetz [general Law relating to Water Purity, 12 November 1996]

+ Some EU Directives affecting environmental law, by "popular" name (in English and equivalent in German and Spanish):

Air Quality Framework: 96/62/EEC [Bewertung und Kontrolle der Luftqualitat/evaluacion y gestion de la calidad del aire ambiente]

Bathing Water: 76/160/EEC [Qualitat der Badegewasser/calidad de las aguas de bafio]

Contained Use (GMMOs): 90/219/EEC [Verwendung genetisch veranderter Mikroorganismen in geschlossenen Systemen/utilizacion confinada de microorganismos modificados geneticamente]

Control of Major Accidents: 96/82/EEC [Beherrschung der Gefahren bei schweren Unfallen mit gefahrlichen Stoffen/control de los riesgos inherentes a los accidentes graves en los que intervengan]

Deliberate Release (GMOs): 2001/18/EC [absichtliche Freisetzung genetisch veranderter Organismen in die Umwelt/liberacion intencional en el medio ambiente de organismos modificados geneticamente]

Drinking Water: 80/778/EEC [Qualitat von Wasser fur den menschlichen Gebrauch/calidad de las aguas destinadas al consumo humano]

End-of-Life Vehicles: 2000/53/EC [Altfahrzeuge/vehfculos al final de su vida util]

Environmental Impact Assessment: 85/337/EEC [Umweltvertraglichkeitspru'fung/evaluacion de las repercusiones de determinados proyectos sobre el medio ambiente]

IPPC: 96/61/EEC [integrierte Vermeidung und Verminderung der Umweltverschmutzung/prevencion y al control integrados de la contamination]

La ndf i 11: 99/31 /EC [Abfalldeponien/vertido de residuos]

Nitrates: 91/676/EEC [Verunreinigung durch Nitrate/contaminacion producida por nitratos]

Renewable Energy: 2001/77/EC [Forderung der Stromerzeugung aus erneuerbaren Energiequellen/promocion de la electricidad generada a partir de fuentes de energia renovables]

Urban Wastewater Treatment: 91/271/EEC [Behandlung von kommunalem Abwasser/tratamiento de las aguas residuales urbanas]

Water Framework; 2000/60/EC [Ordnungsrahmen im Bereich der Wasserpolitik/marco comunitario de actuation en el ambito de la politica de aguas]

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