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Environmental Inspections and the EU: Securing an Effective Role for a Supranational Union Legal Framework

Published online by Cambridge University Press:  04 March 2016

Martin Hedemann-Robinson*
Affiliation:
Kent University Law School (United Kingdom (UK)). Email: M.Hedemann-Robinson@kent.ac.uk.

Abstract

Over several years, the European Union (EU) has gradually developed its legal framework to assist in the proper application of EU environmental protection rules, both at Member State as well as at EU institutional levels. This article focuses on one particular and relatively recent emerging element of that supranational framework, namely the range of EU secondary legislative measures and provisions concerning the management of environmental inspections. In addition to appraising the extent of EU legislative engagement in relation to environmental inspections, this article reflects on certain challenges of a constitutional nature that the EU will need to address in the future if its intervention in this particular policy field is to continue to develop.

Type
Articles
Copyright
© Cambridge University Press 2016 

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References

1 E.g., annual reports completed by the European Commission in monitoring compliance with EU environmental law confirmed that between 2002 and 2013 the environmental sector constituted the largest proportion of infringement actions pursued by the Commission in all but one of those years: see analysis by Hedemann-Robinson, M., Enforcement of European Union Environmental Law: Legal Issues and Challenges, 2nd edn (Routledge, 2015) pp. 247248 Google Scholar. European Commission annual monitoring reports are available for inspection at: http://ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/annual-reports/index_en.htm. In its 2011 study on implementation of EU environmental legislation for the European Commission, the Danish environmental consultancy COWI estimated that the annual cost of non-implementation of the EU’s environmental acquis amounted to some €50 billion: COWI et al., ‘The Costs of Not Implementing the Environmental Acquis’, Final Report for the European Commission – Directorate-General Environment (DG ENV), ENV.G.1/FRA/2006/0073, Sept. 2011, available at: http://ec.europa.eu/environment/enveco/economics_policy/pdf/report_sept2011.pdf.

2 E.g., in 2014 the EEA reported that approximately 21%, 14% and 8% of the EU-28 urban population reside in areas where the exposure to particulate matter (PM10), ozone (O3) and nitrogen dioxide (NO2) respectively exceeds maximum EU limit values: EEA, Air Quality in Europe: 2014 Report, Report No. 5/2014, 19 Nov. 2014, available at: http://www.eea.europa.eu/publications/air-quality-in-europe-2014.

3 Art. 192(4) TFEU stipulates that ‘without prejudice to certain measures adopted by the Union, Member States shall [...] implement the environment policy’. See also the general obligations of Member States set out in the TEU and TFEU on implementing EU law: Art. 4(3) TEU and Arts 197(1) and 291(1) TFEU.

4 EU Network for the Implementation and Enforcement of Environmental Law (IMPEL), available at: http://impel.eu.

5 IMPEL, ‘Challenges in the Practical Implementation of EU Environmental Law and How IMPEL Could Help Overcome Them’, Final Report, 23 Mar. 2015, available at: http://impel.eu/wp-content/uploads/2015/03/Implementation-Challenge-Report-23-March-2015.pdf. A 2009 IMPEL study assessed that approximately 19% of transboundary waste shipments in the EU were illegal: BiPRO GmbH, ‘IMPEL-TFS Enforcement Actions II: Enforcement of EU Waste Shipment Regulation “Learning by Doing”’, Final Report’, 28 Apr. 2011, available at: https://zoek.officielebekendmakingen.nl/blg-126323.pdf.

6 See, e.g., Borzsák, L., The Impact of Environmental Concerns on the Public Enforcement Mechanism under EU Law: Environmental Protection in the 25th Hour (Kluwer Law International, 2011)Google Scholar; Davies, P., EU Environmental Law: An Introduction to Selected Issues (Ashgate, 2004)Google Scholar; Hedemann-Robinson, n. 1 above; Hedemann-Robinson, M., ‘Enforcement of EU Environmental Law: Taking Stock of the Evolving Union Legal Framework’ (2015) 24(5) European Energy and Environmental Law Review, pp. 115129 Google Scholar; Krämer, L., EU Environmental Law, 7th edn (Sweet & Maxwell, 2011)Google Scholar; Lenaerts, K. & Gutierrez-Fons, J., ‘The General System of EU Environmental Law Enforcement’ (2011) 30(1) Yearbook of European Law, pp. 341 CrossRefGoogle Scholar; Wennerås, P., The Enforcement of EC Environmental Law (Oxford University Press, 2007)CrossRefGoogle Scholar.

7 Baldwin, R., Cave, M. & Lodge, M., Understanding Regulation: Theory Strategy and Practice, 2nd edn (Oxford University Press, 2012), p. 228 Google Scholar.

8 Decision 1386/2013/EU on a General Union Environment Action Programme to 2020 ‘Living Well, Within the Limits of Our Planet’ [2013] OJ L 354/171, Annex, para. 65(iii).

9 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon (Portugal), 17 Dec. 2007, in force 1 Dec. 2009, [2007] OJ C 306/1.

10 Composed of the TEU and TFEU, consolidated versions of which are published in [2012] OJ C 326/13-390; see also: http://eur-lex.europa.eu/collection/eu-law/treaties.html.

11 See, e.g., COWI et al., ‘Impact Assessment Study into Possible Options for Revising Recommendation 2001/331 providing for Minimum Criteria for Environmental Inspections’, Final Report for the European Commission – DG ENV, ENV.G.1/FRA/2006/0073, June 2011, available at: http://ec.europa.eu/environment/legal/law/pdf/Env%20inspections_report.pdf; IEEP, BIOIS & ECOLOGIC, ‘Study on Inspection Requirements for Waste Shipments’, Final Report for the European Commission – DG ENV, ENV G.4/FRA/2007/0067, available at: http://ec.europa.eu/environment/waste/shipments/pdf/report_august09.pdf.

12 See, e.g., IMPEL Secretariat, ‘Short Overview of the Organisation of Inspection in the EU Member States, Norway and Acceding and Candidate Countries’, 2003. See also IMPEL reports on inspections regarding waste shipments: ‘Seaport Projects I-II’ (2003–6), ‘Verification of Waste Destinations Projects I’ (2003–6), and ‘Enforcement Actions Projects I-III’ (2008–12). An overview is provided on the IMPEL website at: http://impel.eu/cluster-2.

13 Commission Communication, ‘Implementing Community Environmental Law’, COM(96) 500 final, 22 Oct. 1996.

14 Council Resolution of 7 Oct. 1997 on the Drafting, Implementation and Enforcement of Community Environmental Law [1997] OJ C 321/1.

15 Decision 1600/2002/EC laying down the Sixth Community Environment Action Programme [2002] OJ L 242/1.

16 Recommendation 2001/331/EC providing for Minimum Criteria of Environmental Inspections in the Member States [2001] OJ L 118/41 (RMCEI). Recommendations are non-binding measures under EU law: Art. 288(5) TFEU.

17 Namely to ensure that market operators are subject to commensurate levels of scrutiny and accompanying costs for the purpose of EU environmental law compliance, irrespective of their location within the Union.

18 RMCEI, n. 16 above, para. II(1)(a).

19 Directive 2010/75/EU on Industrial Emissions (Integrated Pollution Prevention and Control (IPCC)) (recast) [2010] OJ L 334/17, which succeeded the earlier IPPC legislation, namely former IPPC Directive 96/61 [1996] OJ L 257/26, as previously consolidated by Directive 2008/1/EC [2008] OJ L 24/8.

20 RMCEI, n. 16 above, para. IV.

21 Ibid., para. V.

22 Ibid., para. VII.

23 Ibid., para. VI.

24 Commission Report on Implementation of Recommendation 2001/331/EC providing for Minimum Criteria for Environmental Inspections, SEC(2007) 1493, 14 Nov. 2007.

25 RMCEI, n. 16 above, para. IX.

26 Ibid., para. X.

27 Belgium, Germany, Ireland, the Netherlands, Sweden and the United Kingdom (UK).

28 SEC(2007) 1493, n. 24 above, p. 20.

29 RMCEI, n. 16 above, para. II.2.

30 IED, n. 19 above.

31 Directive 2012/18/EU on the Control of Major Accident Hazards Involving Dangerous Substances, amending and subsequently repealing Directive 96/82/EC [2012] OJ L 197/1 (Seveso III Directive).

32 Directive 2008/98/EC on Waste and repealing certain Directives [2008] OJ L 312/3 (Waste Framework Directive or WFD); Directive 1999/31/EC on the Landfill of Waste [1999] OJ L 182/1 (Landfill Directive); Directive 2006/21/EC on the Management of Waste from Extractive Industries and amending Directive 2004/35/EC [2006] OJ L 102/15 (Mining Waste Directive); Directive 2012/19/EU on Waste Electrical and Electronic Equipment (recast) [2012] OJ L 197/38 (WEEE Directive); and Regulation (EU) No. 660/2014 amending Regulation (EC) No. 1013/2006 on Shipments of Waste [2014] OJ L 189/135 (Waste Shipments Regulation or WSR).

33 Regulation 1005/2009/EC on Substances that Deplete the Ozone Layer (recast) [2009] OJ L 286/1 (Ozone Depleting Substances Regulation or ODSR).

34 Directive 2009/31/EC on the Geological Storage of Carbon Dioxide and amending various Directives [2009] OJ L 140/114 (CO2 Storage Directive).

35 Directive 2010/63/EU on the Protection of Animals Used for Scientific Purposes [2010] OJ L 276/33 (Animal Experimentation Directive).

36 See Art. 35 of the Treaty establishing the European Atomic Energy Community (Euratom), Rome (Italy), 25 Mar. 1957, in force 1 Jan. 1958, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012A%2FTXT; and Directive 2009/71/Euratom establishing a Community Framework for the Nuclear Safety of Nuclear Installations [2009] OJ L 172/18 (Civil Nuclear Directive), as amended by Directive 2014/87/Euratom [2014] OJ L 219/42.

37 Regulation (EC) No. 768/2005 establishing a Community Fisheries Control Agency and amending Regulation (EC) No. 2847/93 [2005] OJ L 347, in conjunction with Regulation (EC) No. 1224/2009 establishing a Community Control System for Ensuring Compliance with the Rules of the CFP [2009] OJ L 343.

38 N. 32 above. The 2008 Directive does little to add to provisions on inspections contained in earlier versions of the Waste Framework Directive.

39 N. 19 above.

40 Seveso III Directive, n. 31 above.

41 Regulation (EC) No. 1013/2006 on Shipments of Waste [2006] OJ L 190/1, as amended by Regulation (EU) No. 660/2014, n. 32 above.

42 For further discussion of the latest generation of inspection provisions, see Hedemann-Robinson, n. 1 above, Ch. 11.

43 Regulation (EC) No. 1013/2006, n. 41 above, Art. 50(2a).

44 IED, n. 19 above, Art. 23(2), and Seveso III Directive, n. 31 above, Art. 20(3).

45 The IED (n. 19 above) is one of the few pieces of sectoral legislation that broach the subject of resourcing of inspectorates, but does so in a weak fashion. Specifically, recital 26 of its Preamble exhorts Member States to ‘ensure that sufficient staff are available with the skills and qualifications necessary to carry out [IED] inspections effectively’. The Directive does not contain any specific binding requirements on the matter, though.

46 The main framework instrument is Directive 2003/87/EC establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community and amending Directive 96/61/EC [2003] OJ L 275/32, as amended (most recently by Directive 2009/29/EC [2009] OJ L 140/63) (Emissions Trading Directive).

47 Regulation (EU) No. 601/2012 on the Monitoring and Reporting of Greenhouse Gas Emissions pursuant to Directive 2003/87 [2012] OJ L 181/30, as amended (most recently by Regulation (EU) No. 743/2014 [2014] OJ L 201/1).

48 Regulation (EU) No. 600/2012 on the Verification of Greenhouse Gas Emission Reports and Tonne-Kilometre Reports and the Accreditation of Verifiers pursuant to Directive 2003/87/EC [2012] OJ L 181/1.

49 Ibid., Arts 20–21.

50 Emissions Trading Directive, n. 46 above, Arts 15 and 16.

51 The EU legislation does not specifically rule out the possibility of officials of national competent authorities acting as verifiers where appropriately qualified, but it is unlikely that in practice authorities would have the requisite staff resources to do this. For comments on the use of private verifiers, see Peeters, M., ‘The Enforcement of Greenhouse Gas Emissions Trading in Europe: Reliability Ensured?’, in L. Paddock et al. (eds), Compliance and Enforcement in Environmental Law: Toward More Effective Implementation (Edward Elgar, 2011), pp. 407430 Google Scholar, at 417–8.

52 Regulation (EU) No. 600/2012, n. 48 above, Chs IV–V. The system of accreditation is developed from that used for accreditation for marketing of products under Regulation (EC) No. 765/2008 [2008] OJ L 218/30.

53 Ibid., Art. 25.

54 Regulation (EU) 2015/757 on the Monitoring, Reporting and Verification of Carbon Dioxide Emissions from Maritime Transport, and amending Directive 2009/16/EC [2015] OJ L 123/55.

55 See especially Regulation (EU) 2015/757, ibid., Art. 15.

56 Decision 1386/2013/EU, n. 8 above.

57 Commission Communication, ‘Improving the Delivery of Benefits from EU Environmental Measures: Building Confidence through Better Knowledge and Responsiveness, COM(2012) 95 final, 7 Mar. 2012.

58 Ibid., pp. 7–8.

59 Decision 1386/2013/EU, n. 8 above, Annex, Priority Objective 4 to Maximise the Benefits of Union Environmental Legislation by Improving Implementation.

60 The three other matters concern: (i) improvements in information collection and dissemination on the state of implementation; (ii) national systems handling environmental complaints; and (iii) access to environmental justice (in accordance with the Aarhus Convention (UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus (Denmark), 25 June 1998, in force 30 Oct. 2001, available at: http://www.unece.org/env/pp/welcome.html), and EU law): see Decision 1386/2013/EU, n. 8 above, Annex, paras 58–65(a)–(e).

61 COWI et al., ‘Impact Assessment Study into Possible Options for Revising Recommendation 2001/331/EC providing for Minimum Criteria for Environmental Inspections’, Final Report for the European Commission – DG ENV, ENV.G.1/FRA/2006/0073, June 2011, available at: http://ec.europa.eu/environment/legal/law/inspections.htm.

62 The details of the stakeholder consultation process and findings are available for inspection on the DG ENV website at: http://ec.europa.eu/environment/legal/law/inspections.htm.

63 These observations are based upon an Outline Paper and Explanatory Paper presented by DG ENV at a joint workshop between the Commission and IMPEL in Rome (Italy), Dec. 2014. The papers presented to the workshop are available at: http://ec.europa.eu/environment/legal/law/inspections.htm.

64 Specifically, matters covered by Directive 2004/35/EC on Environmental Liability with regard to the Prevention and Remedying of Environmental Damage [2004] OJ L 143/56 (Environmental Liability Directive); Directive 2007/2/EC establishing an Infrastructure for Spatial Information in the EC [2007] OJ L 108/1 (INSPIRE Directive); and Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment [2012] OJ L 26/1 (EIA Directive) as amended. The DG ENV Outline Paper contains an Annex listing the EU environmental legislation to be covered by the prospective EU framework inspections instrument.

65 N. 19 above.

66 N. 31 above.

67 The DG ENV Explanatory Paper refers to these tools/techniques as being the ‘three pillars’ of risk mitigation.

68 Art. 291(2)–(4) TFEU and Regulation (EU) No. 182/2011 laying down the Rules and General Principles Concerning Mechanisms for Control by Member States of the Commission’s Exercise of Implementing Powers [2011] OJ L 155/13. Post-Lisbon, ‘comitology’ envisages the conferral of powers of implementation on the Commission in legally binding Union acts, where uniform conditions for their implementation are needed.

69 See, e.g., IMPEL, ‘Developing Performance Indicators for Environmental Inspection Systems’, Project Report 2009/03, Apr. 2010, especially the discussion on inspector numbers, pp. 8–9, available at: http://impel.eu/wp-content/uploads/2010/04/2009-03-Developing-performance-indicators-for-environmental-inspection-systems-FINAL-REPORT-.pdf.

70 Art. 197(2) TFEU.

71 Art. 50(2a)(f) and (g) Regulation (EC) No. 1013/2006 (n. 41 above), as amended by Regulation (EU) No. 660/2014 (n. 32 above), which requires Member States by 1 Jan. 2017 to ensure that their waste shipment inspection plans include information on ‘the training of inspectors on matters relating to inspections’ and ‘the human, financial and other resources for that plan’. See also Art. 5(2)(c) Directive 2009/71/Euratom (n. 36 above), which requires that the competent national regulatory authority ‘is given dedicated and appropriate budget allocations to allow for the delivery of its regulatory tasks as defined in the national framework’.

72 See recital 26 of the Preamble to the IED (n. 19 above), which states that ‘Member States should ensure that sufficient staff are available with the skills and qualifications needed to carry out those inspections effectively’. See also recital 26 of the Seveso III Directive (n. 31 above), which additionally states that ‘competent authorities should provide appropriate support using tools and mechanisms for exchanging experience and consolidating knowledge including at Union level’.

74 The Commission’s Work Programme for 2015 is set out in Commission Communication, ‘Commission Work Programme 2015 – A New Start’, COM(2014) 910 final, 16 Dec. 2014, available at: http://ec.europa.eu/atwork/pdf/cwp_2015_en.pdf.

75 Junker, J.-C., ‘A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change: Political Guidelines for the Next European Commission’, 15 July 2014, available at: http://ec.europa.eu/priorities/docs/pg_en.pdf Google Scholar.

76 The Political Guidelines (ibid.) identify 10 priority policy areas for the Commission college appointed for the period 2015–20, which in broad terms may be highlighted as: jobs, growth and investment; digitalization of the single market; energy union in conjunction with climate change policy; strengthening of the internal market; deepening of economic and monetary union; attainment of a free trade agreement with the US; deepening the area of justice in conjunction with fundamental rights; development of a new migration policy; strengthening of EU external relations; and strengthening of democratic structures of EU decision making.

77 In accordance with point 39 subpara 2 of the Framework Inter-Institutional Agreement on Relations between the European Parliament and Commission [2010] OJ L 304/47, which stipulates that ‘[t]he Commission shall proceed with a review of all pending proposals at the beginning of the Commission’s term of office, in order to politically confirm or withdraw them, taking due account of the view expressed by Parliament’.

78 COM(2014) 910 final, n. 74 above

79 See, in particular, the European Parliament Resolution on the review of Recommendation 2001/331/EC, P6_TA(2008)0568, 10 Oct. 2008, para. 5, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0568+0+DOC+XML+V0//EN, and European Parliament Report on the Proposal for a Council Recommendation providing for Minimum Criteria for Environmental Inspections in the Member States, PE.229.97/fin A4-0251/99, 26 Apr. 1999, especially point B.2 of the Explanatory Statement, available at: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A4-1999-0251&language=EN.

80 Macrory has pointed out, though, that the UK government at the time initially appeared open to consider an auditing role for the Agency: Macrory, R., ‘The Enforcement of Community Environmental Law: Some Critical Issues’ (1992) 29(2) Common Market Law Review, pp. 347369 Google Scholar.

81 Art. 20 Regulation (EC) No. 1210/90 on the Establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L 120/1, as amended by Regulation (EC) No. 93/1999 [1999] OJ L 117/1.

82 As published in [1997] OJ C 255/9 and [1998] OJ C 123/6.

83 [1997] OJ C 321/1.

84 RMCEI, n. 16 above, Preamble, recital 5.

85 See, e.g., Hall, E., ‘Environmental Law in the EU: New Approach for Enforcement’ (2007) 20(2) Tulane Environmental Law Journal, pp. 277303 Google Scholar, at 294–5. See also n. 116 below.

86 Decision 1386/2013/EU, n. 8 above.

87 BIO Intelligence Service et al., ‘Study on Possible Options for Strengthening the EU Level Role in Environmental Inspections and Strengthening the Commission’s Capacity to Undertake Effective Investigations of Alleged Breaches in EU Environmental Law’, Final Report for the European Commission – DG ENV, 14 Jan. 2013, available at: http://ec.europa.eu/environment/legal/law/inspections.htm.

88 Ozone Depleting Substances Regulation, n. 33 above.

89 Regulations (EC) No. 768/2005 and 1224/09, n. 37 above.

90 EAEC Treaty, n. 36 above, Art. 35.

91 Animal Experimentation Directive, n. 35 above.

92 N. 33 above.

93 As indicated in the Study by BIO Intelligence Service et al., n. 87 above.

94 Ozone Depleting Substances Regulation, n. 33 above, Art. 28.

95 Regulation (EC) No. 768/2005, n. 37 above.

96 Regulation (EC) No. 1224/2009, n. 37 above, Art. 97.

97 N. 35 above.

98 Euratom Treaty, n. 36 above, Art. 35.

99 European Commission report covering the period 2008–12: Commission Staff Working Document, ‘On the Application of Article 35 of the Euratom Treaty: Verification of the Operation and Efficiency of Facilities for Continuous Monitoring of the Levels of Radioactivity in the Air, Water and Soil, SWD(2013) 226 final, 18 June 2013.

100 Regulation (EC) No. 882/2004 on Official Controls Performed to Ensure the Verification of Compliance with Feed and Food Law, Animal Health and Animal Welfare Rules [2004] OJ L 165/1, as amended.

101 Regulation (EC) No. 1/2003 on the Implementation of the Rules on Competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L 1/1 as amended, and Regulation (EC) No. 139/2004 on the Control of Concentrations between Undertakings [2004] OJ L 24/1.

103 BIO Intelligence Service et al., n. 87 above.

104 See former Regulation (EC) No. 17/62 First Regulation Implementing Articles 85 and 86 of the [former EEC] Treaty [1962] OJ L 13/204. For information on the Commission’s investigatory role in EU competition policy see the website of the Commission’s Competition Directorate-General (DG COMP) at: http://ec.europa.eu/competition/antitrust/procedures_101_en.html.

105 Regulation (EC) No. 1/2003, n. 101 above.

106 For a general overview of the operation of the joint supervisory arrangements (collectively the EU Competition Network), see Commission Communication, ‘Ten Years of Antitrust Enforcement under Regulation (EC) No. 1/2003: Achievements and Future Perspectives’, COM(2014) 453, 9 July 2014.

107 Regulation (EC) No. 1/2003, n. 101 above, Arts 18–21.

108 Ibid., Arts 23–24.

109 BIO Intelligence Service et al., n. 87 above.

110 Decision 1386/2013/EU, n. 8 above, Annex, para. 65(iii).

111 See, e.g., Reichel, J., ‘Communicating with the European Composite Administration’ (2014) 15 German Law Journal, pp. 883906 Google Scholar, at 886; Hofmann, H. & Türk, A., ‘The Development of Integrated Administration in the EU and its Consequences’ (2007) 13(2) European Law Journal, pp. 253271 CrossRefGoogle Scholar, at 253–5.

112 See, e.g., Schütze, R., European Union Law (Cambridge University Press, 2015), p. 334 Google Scholar.

113 Harlow, C., ‘Three Phases in the Evolution of EU Administrative Law’, in P. Craig & G. De Burca (eds), The Evolution of EU Law, 2nd edn (Oxford University Press, 2011), p. 443 Google Scholar.

114 See, e.g., Craig, P., EU Administrative Law, 2nd edn (Oxford University Press, 2012), pp. 2833 CrossRefGoogle Scholar.

115 See, e.g., Heidbreder, E., ‘Structuring the European Administrative Space: Policy Instruments of Multi-Level Administration’ (2011) 18(5) Journal of European Public Policy, pp. 709727 CrossRefGoogle Scholar, at 709–10; Hofmann & Türk, n. 111 above, p. 263.

116 Pernice, I., ‘The Treaty of Lisbon: Multilevel Constitutionalism in Action’ (2009) 15(3) Columbia Journal of European Law, pp. 349407 Google Scholar, especially at 380–3.

117 This decentralized state of affairs may be contrasted with the far more centralized administration of environmental protection policy in certain federal systems such as the US, in which the Environmental Protection Agency and Department of Justice have far-reaching powers to intervene in the states for the purpose of safeguarding compliance with federal environmental laws: see, e.g., C. Cruden & B. Gelber, ‘Federal Civil Environmental Enforcement in the United States: Process, Players and Priorities’, in Paddock et al., n. 51 above, pp. 197–222. Other federal systems of governance may, of course, adopt a more decentralized approach to the regulation of environmental protection such as the EU, the UK, Germany, Belgium and Australia.

118 For an overview of EU law in these centralized areas see, e.g., Craig, n. 114 above, Ch.3.

119 See, e.g., Pollak, J. & Puntscher Riekmann, S., ‘European Administration: Centralisation and Fragmentation as Means of Polity-Building?’ (2008) 31(4) West European Politics, pp. 771788 CrossRefGoogle Scholar, at 771.

120 See, e.g., Case C-68/88, Commission v. Greece [1989] ECR 2965, especially paras 23–24.

121 See, e.g., Case C-354/99, Commission v. Ireland [2001] ECR I-7657, para. 46.

122 Case C-72/95, Aannemersbedriff P.K. Kraaijeveld BV e.a. v. Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403.

123 Notably Art. 19(1) TEU and Art. 267 TFEU.

124 Notably Art. 17 TEU and Arts 258–260 TFEU.

125 Notably by virtue of the Environmental Liability Directive, n. 64 above (criminal sanctions); Directive 2008/99/EC on the Protection of the Environment through Criminal Law [2008] OJ L 328/28 (administrative sanctions concerning environmental remediation); the Emissions Trading Directive, n. 46 above (financial penalty for excess emissions); Regulation (EC) No. 443/2009 setting Emission Performance Standards for New Passenger Cars as part of the Community’s Integrated Approach to Reduce CO2 Emissions from Light-Duty Vehicles [2009] OJ L 140/1 (as most recently amended by Regulation (EU) 2015/6 [2015] OJ L 3/1); and Regulation (EU) No. 510/2011 setting Emission Performance Standards for New Light Commercial Vehicles as part of the Community’s Integrated Approach to Reduce CO2 Emissions from Light-Duty Vehicles [2011] OJ L 145/1 (as most recently amended by Regulation (EU) No. 404/2014 [2014] OJ L 121/1) (excess emissions premium to be paid in the event of exceeding the CO2 emissions target).

126 Emphasis added.

127 For overviews on the evolution and impact of the subsidiarity principle in EU administrative law see, e.g., Craig, n. 114 above, Ch. 14; and Schütze, n. 112 above, Ch. 9.

128 Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality [2012] OJ C 326.

129 See, e.g., the judgment of the CJEU in Case C-508/13, Estonia v. European Parliament and Commission (Judgment of 18 June 2015, not yet reported), para. 29, in which the CJEU held that, with regard to judicial review of the application of Art. 5(3) TEU, ‘the EU legislature must be allowed broad discretion’ in areas which entail ‘political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue’. See also Case C-491/01, The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453, para. 123; Case C-58/08, The Queen (on the application of Vodafone Ltd and Others) v. Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999, para. 52.

130 For the yellow card procedure to be triggered, at least one-third of the votes allocated to national parliaments must register a negative reasoned opinion within 8 weeks of the national assemblies being notified of the legislative proposal (in accordance with Protocol (No. 2), n. 128 above, Arts 6 and 7(2)). For the orange card procedure to operate, at a least a simple majority of votes allocated to national parliaments must register a negative reasoned opinion within the same time period (in accordance with Protocol (No. 2), Arts 6 and 7(3)).

131 The so-called ‘Monti II’ initiative: Commission, ‘Proposal for a Regulation on the Exercise of the Right to Take Collective Action within the Context of the Freedom of Establishment and the Freedom to Provide Services’, COM(2012) 130 final, 21 Mar. 2012. On the other occasion on which the yellow card procedure has been invoked to date by national parliaments, the Commission decided not to withdraw its proposal: Commission, ‘Proposal for a Regulation on the Establishment of the European Public Prosecutor’s Office’, COM(2013) 534 final, 17 July 2013.

132 Art. 4(2)(e) TFEU.

133 Notably, in its Environmental Crimes judgment (Case C-176/03, Commission v. Council [2005] ECR I-7879), para. 48, the CJEU confirmed that the predecessor to Art. 192 TFEU (ex. Art. 175 EC Treaty) provided the EU legislature with a legal basis to introduce a directive on environmental crime with a view to ensuring the application of effective, proportionate and dissuasive criminal penalties by competent national authorities, as a reflection of the EU legislature’s view that such an instrument constitutes an essential measure for combating serious environmental offences.

134 [2004] OJ C 310/1.

135 European Convention Working Group V, ‘Final Report of Working Group V to the European Convention’, CONV 375/1/02 REV 1 (WG V 14), 4 Nov. 2002, available at: http://european-convention.europa.eu/pdf/reg/en/02/cv00/cv00375-re01.en02.pdf.

136 Ibid., p. 18.

137 European Convention Working Group V, Working Document 21: ‘Proposal by G. Druesne on a New Article on Public Administration’, 4 Sept. 2002, available at: http://european-convention.europa.eu/docs/wd5/2374.pdf.

138 Ibid., p. 4.

139 Schütze has cautioned that an ironic side effect of this treaty provision may be to favour indirectly more centralized intervention by the EU through the conferral of implementing powers on the Commission or Council of the EU under the aegis of Art. 291(2) TFEU (i.e. via ‘comitology’): Schütze, n. 112 above, p. 339. In the context of EU environmental policy, though, such a development is unlikely given the long-standing resistance and scepticism of several Member States to the idea of a strong level of supranational institutional engagement in implementation matters.

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