Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

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alance conflicting policies; the measures must not be discriminatory and must not go beyond what is strictly necessary for the protection of the environment. 301 The legal enforceability of the principle has been subject of debate within the Court's case law. Several legal consequences are distinguished by Jans & Vedder. First, the principle can be used to decide on the choice of legal basis of environmental measures. 302 Second, the principle "broadens the objectives of the other powers laid down in the Treaty and thus limits the role of the specific powers doctrine in environmental policy." 303 Environmental objectives can thus now be taken into account without interfering with the doctrine of conferred powers. Moreover, the principle can be used in order to review whether actions of EU institutions are legitimate (in view of the environmental objectives that have to be taken into account). According to Jans & Vedder it is in principle possible to review EU measures in light of the environmental objectives. 304 However, EU institutions have wide discretionary powers in balancing different policies and objectives. Therefore, the Court may only annul an act if a manifest error of appraisal with regard to the conditions of Article 192 TFEU is committed. This will probably only occur in exceptional circumstances. 305 Moreover, as Jans & Vedder point out, it is important to distinguish between the objectives (to which Union policy 'shall contribute'), the principles (for which the Union 'shall aim at a high level of protection') and the policies (which the Union 'shall take into account'). This will influence the level of judicial review by the Court. 306 Hence, review is limited and shall depend on the circumstances of the case. This is confirmed by Krämer who also states that the wide discretion of Union institutions will make an action on Article 11 difficult. 307 The fourth legal consequence is the interpretation of secondary EU legislation in light of the environmental objectives, also outside the environmental field. 308 The final consequence referred to by Jans & Vedder is the influence of the integration principle on the national (in this thesis: Dutch) level. Since Article 11 TFEU expressly refers to the Union, there is no direct consequence for the MS. Indirectly, the principle will have consequences, for e.g. EU legal acts addressed to the MS. Also, Jans & Vedder also argue that if the EU act leaves some discretion to the MS, they also have to apply the integration principle themselves. 309 However, in areas that have not been harmonised, MS are not bound by EU environmental objectives and principles. Although, MS always have to comply with the principle of sincere cooperation of Art. 4(3) TEU. Hence, when implementing EU law, MS always have to comply with the environmental principles. The CFR, which has the same legal value as the Treaties according to Art. 6(1) TEU, also codifies the integration principle in Article 37. However, this Article is not as strongly expressed as Article 11 TFEU. It only refers to policies (not activities) and is less broadly formulated. 310 Special attention to the application of the principle to environmental issues is not necessary here, since the principle only applies to (at least partly) environmental issues. 5.5.2 Dutch level The integration principle is an EU principle and has no Dutch equivalence on the national level. It can indirectly be found in the regulation on the duty to carry out an EIA when preparing projects or 301 Jans & Vedder (2012), pp. 23-24; Case 240/83 ADBHU [1985] ECR 531. 302 Jans & Vedder (2012), p. 24; Case C-62/88 EP v. Council [1990] ECR I-1527. 303 Jans & Vedder (2012), p. 25; Case C-513/99 Concordia Bus Finland [2002] ECR I-7213; Case C-448/01 EVN and Wienstrom [2003] ECR I-4527. 304 Jans & Vedder (2012), p. 26; Case C-62/88 EP v. Council [1990] ECR I-1527; Case C-341/95 Gianni Bettati [1998] ECR I-4355. 305 Jans & Vedder (2012), p. 26. 306 Jans & Vedder (2012), p. 27. 307 Krämer (2011), p. 21. 308 Jans & Vedder (2012), p. 27; see e.g. Joined Cases T-74, 76, 83, 85, 132, 137, 141/00 Artegodan GmbH a.o. v. Commission [2002] ECR II-4945, paragraph 183, in field of public health. 309 Jans & Vedder (2012), p. 28. 310 Jans & Vedder (2012), p. 29. 66
new legislation. 311 It should be mentioned here that the integration principle stands at odds with the Dutch prohibition against misuse of power (specialiteitsbeginsel). This Dutch principle is codified in Article 3:4(1) Awb. It means that a governing body may only represent those interests for which it has an express legal basis in the relevant law or regulation. 312 It could be debated whether the integration principle provides for such an express legal basis. This is especially relevant since the Mining Act provides for very specific refusal grounds. Hence, with regard to the specialiteitsbeginsel, it is not allowed for the competent authorities to refuse or attach conditions to an exploration or extraction permit on other grounds than the Mining Act provides. Since the Mining Act does not provide for environmental refusal grounds, it could be wondered whether the integration principle has actually found its way into Dutch law. 5.6 Principle of environmental policy: precautionary principle 5.6.1 EU level First, a brief historical background of the precautionary principle is useful. The principle originated in Germany, where it was called Vorsorgeprinzip ("fore-caring principle"). The ratification of this principle occurred in the Federal Emission Control Act in 1974. 313 In 1982 it appeared in the UN Charta for Nature, after which it was included in the Ministerial Declaration of the Second International Conference on the Protection of the North Sea in 1987. Moreover, it was mentioned in the Rio Declaration in Principle 15 and repeated in a similar manner in the UN Framework Convention on Climate Change in Art. 3 no. 3: The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. (Made italic by author) It has been frequently added in other international documents. 314 Since the Single European Act (Art. 130r(2) EC-Treaty), this principle can also be found in the EU Treaties. Nowadays, the precautionary principle is inserted in Article 191(2) TFEU. It is stated here, and this is also confirmed by case law of the CJEU, that the EU environmental policy will be guided by (inter alia) this principle. 315 The precautionary principle is, together with the prevention principle, a fundamental principle of environmental protection. 316 Generally, it means: "better safe than sorry". 317 A referral to this principle can also be found in many EU regulations and directives, such as the EIA Directive, Article 6(3) of the Habitat Directive, etc. However, none of these instruments give a definition of this principle. This should therefore be found in the case law of the CJEU and in policy documents of the Commission, especially in the Communication from the Commission of 2 February 2000 on the precautionary principle. 318 The definition is therefore dependent on the 311 Backes et al. (2002), p. 9. 312 Backes et al. (2002), p. 9. See also J.H. Jans (2006). 313 Trouwborst (2002), pp. 7-8. 314 See e.g. the Paris Convention for the protection of the marine environment of the north-east Atlantic, the Convention of Biological Diversity, the Protocol on Biosafety concerning the safe transfer, handling and use of living modified organisms resulting from modern biotechnology, etc. 315 Case C157/96 National Farmers’ Union and Others [1998] ECR I2211, paragraph 64; Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I7405, paragraph 44; Joined Cases C14/06 and C295/06 Parliament and Denmark v Commission [2008] ECR I0000, paragraph 75; Case C127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I9895, paragraph 30. 316 Case C-121/07 Commission v France [2008] ECR I-09159, paragraph 74. 317 Trouwborst (2002), p. 8. 318 Communication from the Commission of 2 February 2000 on the precautionary principle, COM(2000) 1 final - Not published in the Official Journal. 67
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Shale gas extraction: In line with
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Index 1 Introduction p. 7 1.1 Shale
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7 Conclusions and Recommendations p
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to spread in the European Union. It
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2 Context In this chapter some back
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the EU could produce more gas itsel
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minor tremors and community disrupt
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Page 106 and 107: • Q&A on the shale gas initiative
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