bluuebunny/crossref_metadata_2025 huggingface dataset:
Presentation of Aarhus-related cases of the Belgian Constitutional Court
Authors: Lavrysen Luc
Published: October 2020

In this article, the author aims to illustrate how a Constitutional Court can contribute to the implementation of the Aarhus Convention. To this end, he uses two judgements of the Belgian Constitutional Court dating from 14 September 2006 as examples.
Opening the Doors to Justice - The Challenge of Strengthening Public Access
Authors: Zodrow Irina , Zengerling Cathrin
Published: October 2020

The second meeting of the Task Force on access to justice under the Aarhus Convention took place on 10-12 September 2007 in Geneva. The Task Force was established by the Parties to the Convention at their second meeting in May 2005 in Almaty, Kazakhstan, with the aim of addressing some of the practical issues and obstacles that occur in implementation of Article 9 of the Convention, which sets out the third pillar of the Convention, access to justice. As part of its mandate to “develop information and training or analytical material and activities at appropriate levels, and organize this work within the framework of the Convention's overall capacity building programme”, the Task Force had organized a workshop for the high-level judiciary in six Eastern European countries to raise awareness beneath the judiciary, build new links and capacities with courts and judicial training centres in the region and establish a network for future capacity building activities and facilitation of the implementation process of access to justice. The workshop took place in Kiev in June 2007, bringing together 35 judges and representatives of the national judicial training institutes. On the basis of presentations and hypothetical cases presented by a number of international experts the participants actively discussed obstacles to access to justice in the light of their national legislations and the Aarhus Convention.
Waste, Product and By-product in EU Waste Law
Authors: da Silva Campos Carlos
Published: October 2020

The European Parliament voted to include a “by-product” definition in the Waste Framework Directive. A few days later, the Commission came up with an “Interpretative Communication”. The purpose of this article is to find a way of exploring the “new” definition of by-products in order to find more utility than disturbance.
elni Members and Networks: J&E - More than just an NGO
Authors: Černý Pavel
Published: October 2020

Justice & Environment (J&E) is a non-partisan, mission-driven network of five public interest environmental law and nature protection organisations from EU Member States. J&E aims to use environmental law to protect people, the environment and nature. Their primary goal is to ensure the implementation and enforcement of EU legislation through the use of European law and exchange of information. As a new association, J&E is committed to growth and welcomes new members, especially from new Member States.
Will the CBD fulfil our expectations?
Conserving Biological Diversity – With Fairness and Responsibility
Authors: Brinkmöller Monika
Published: October 2020

From 19 to 30 May 2008 Germany hosts the 9th meeting of the Conference of the Parties to the Convention on Biological Diversity (CBD COP 9). At this meeting, the global community discusses measures against the ongoing destruction of biodiversity as well as ways towards a fair and responsible use of genetic material. Non-Governmental Organisations take a strong interest in the success of this process and have made a number of recommendations to the negotiating parties. This article considers whether the acronym CBD also stands for “Conserving Biological Diversity” in a fair and responsible manner.
‘Biodiversity damage’ liability in the Environmental Liability Directive – its definition and delimitation from more stringent EU, international and national norms
Authors: Mauerhofer Volker
Published: October 2020

The Environmental Liability Directive (‘ELD’) of the European Union entered into force on 30th April 2004 and had to be implemented by 30th April 2007. It had been already from the early beginning up to today subject to multiple considerations by many scholars and is implemented quite differently in the different EU Member States. The ELD contains provisions concerning the liability for ‘environmental damage’, which is further defined inter alia as a specific damage of certain species and habitats (‘biodiversity damage’). Besides the ELD there are already other legal provisions on the European as well as on the international and national level covering several aspects of these liability issues more stringently. Hence the question arises as to how the new provisions of the ELD delimit from these similar but other EU, international and national norms.
Application of European Environmental Law by National Courts
Authors: Lavrysen Luc
Published: October 2020

In this article, the author describes the situation of National Courts applying European Environmental Law. The article shows that not in all Member States the issue is being addressed as it should be. Therefore, the author strongly supports the initiative taken by the European Commission to set up, in the light of Communication COM(2007)502 of September 2007, a large-scale training programme for members of the judiciary on the national level.
Enforcement of European environmental law - The European Parliament comments on the Commission’s report
Authors: Tusch Sebastian
Published: October 2020

The European Commission publishes a yearly “Report on the Monitoring of the Application of Community Law in the Member States of the European Union”. The 2005 edition was reviewed by a member of the Parliament, namely Monica Frassoni, from Italy (Greens/EFA-IT). Her report has recently been adopted by a noteworthy resolution of the European Parliament. The resolution points out both the structural problems of enforcing European Community law and the disputable approach of the Commission during the last few years.
The European Parliament recognises that European Community law is not being applied consistently. The Members of the European Parliament (MEPs) refer to the annual report of the Commission in which the infringement proceedings initiated by the Commission are listed. This report illustrates that the number of detected infringements decreased from 2709 (in 2003) to 2653 (in 2005). This drop by 56 infringements seems at first sight not to be significant. But this reported decrease of procedures happened despite the fact that the European Union increased the number of Member States from 15 to 25 in 2004. Against this background, the lower level in 2005 is indeed questionable. Basically, the enlargement of the European Union was expected to cause a significant increase of infringement procedures against the Member States. This applies in particular to new Member States whose legal systems had been – in terms of compliance with European law – divergent from those in the other Member States.
Public participation in joint bodies for transboundary water cooperation: A new development by the Plenipotentiaries of Moldova and Ukraine
Authors: Trombitcaia Iulia
Published: October 2020

In 2007, the Plenipotentiaries on boundary waters of Moldova and Ukraine adopted a Regulation aimed at streamlining public participation in the activities of this joint body established under the bilateral boundary waters agreement of 1994. This is the first example of formalised rules and procedures for the dissemination of information and public participation in the activities of joint bodies in the countries of Eastern Europe, the Caucasus and Central Asia (EECCA).
This article aims to review the current practice on and opportunities for public participation in the activities of joint bodies on transboundary water cooperation in the UNECE region, and to evaluate the mechanisms established by the Plenipotentiaries of Moldova and Ukraine. This article also examines the Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums.
Stakeholder representation in international environmental standardisation - Joint Communiqué by ANEC, ECOS, and the Pacific Institute
Authors: Fiala Franz , Lottes Ralf , Morrison Jason , Klemola Nina
Published: October 2020

International standardisation in the field of the environment has long been considered an important tool in contributing to sustainable production and sustainable development policies at the global level. This has in particular been the aim of the ISO 14000 series of standards on environmental management, developed by ISO Technical Committee (hereinafter referred to as ‘TC’) 207 on Environmental Management. To help ensure that the International Standards developed by ISO enjoy a degree of credibility and legitimacy, the ISO Strategic Plan lists as one of its key objectives the need to ensure that interested and affected stakeholders are adequately involved in ISO’s work and processes. The importance of ensuring the participation of public interest groups is also echoed in the ISO Code of Ethics.
Despite the noble objectives of openness and transparency, consumer and environmental NGOs have long wrangled with the issue of business dominance and the marginalisation of public interests in standardisation. To help improve this imbalance in the particular case of ISO TC 207, a mixed group of NGO representatives and the TC leadership – the so-called NGO-CAG Task Force – was tasked in 2003 with developing a pair of operating procedures to improve the balance of stakeholder participation in the work of the TC.
This paper reflects the long process of development of operational procedures for balanced stakeholder involvement in ISO TC 207 on Environmental Management, and highlights the need for a change in the way environmental standards, supporting broader public policies, are developed.
Enforcing EU environmental law outside Europe? The case of ship dismantling
Authors: Ormond Thomas
Published: October 2020

There is a significance of EU Member States and European owners in the world of shipping: about 23 % of the merchant ships worldwide fly the flags of Member States and approximately 40 % of the world tonnage is owned by companies domiciled in Europe. What happens to those ships at the end of their lives may be seen as a striking example for the export of an environmental problem from the First to the Third World: More than 80 % of the international merchant ship tonnage is nowadays broken up in South Asia, especially in Bangladesh and India. Today’s end-of life ships do not only consist of steel – which makes recycling profitable – but also contain more or less large quantities of waste oil, asbestos, PCB and other hazardous materials. The recycling countries and particularly Bangladesh rarely have the means and the will to avoid pollution with such hazardous waste and to protect workers’ health adequately. This failure, which is evident in many developing countries, is one of the reasons why the EU transposed the so-called Basel Ban Amendment to the Basel Convention on transboundary waste movements into its law and strictly prohibited since 1998 the export of all hazardous waste and waste for disposal to non-OECD countries. But the export ban, as the article explains in more detail, is virtually ineffective in relation to European ships that go for dismantling to South Asia. This article focuses on legal aspects of the ship dismantling problem as an example of the difficulties of applying and enforcing EU law especially in a maritime context, before turning to the current initiatives to regulate the recycling of ships at international and European level.
Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law: A new start for criminal law in the European Community?
Authors: Gouritin Armelle , De Hert Paul
Published: October 2020

Setting the framework for the protection of the environment through criminal law at the EC level ultimately leads to the adoption of Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law. The Directive establishes a minimum set of conducts that should be considered criminal offences throughout the EU when unlawful and committed intentionally (or with at least serious negligence). Inciting, aiding and abetting of such conducts will equally be considered a criminal offence. Directive 2008/99/EC must be implemented by Member States by 26 December 2010. Its adoption has been a debated and lengthy process. These debates occurred at the EU level (institutional conflict) and member state level, and were reflected into the legal scholars work. These debates concerned not as much the specific content of the Directive, but the institutional framework and in particular the use made of criminal law provisions in a first pillar legal instrument, as opposed to the normal use for these purposes of instruments provided for in the third pillar of the EU (police and judicial cooperation on criminal matters). The Directive, therefore, seemingly deviates from the general rule that “neither criminal law nor the rules of criminal procedure fall within the Community’s competence”. The Directive follows a Court of Justice’s decision of 13 September 2005 (Case C176/03) to annul an EU Framework Decision on the protection of the environment on the grounds that it had been adopted on an erroneous legal basis. In its decision the Court upheld the Commission's submission, holding that the Commission may take measures in relation to the Member States' criminal law where the application of criminal penalties is an essential measure for combating serious environmental offences. Hence, a Directive, a first pillar instrument, including criminal law provisions could be adopted. This article discusses the Directive’s institutional background and looks at the criminal law provisions in the Directive. It ends with a critical note on the presumed impact of the Directive.
Development of harmonised European standards for measuring emissions from construction products in CEN from the perspective of environmental organisations environmental organisations
(CEN TC 351 – Assessment of release of dangerous substances under the Construction Products Directive (CPD) – Emission into indoor air and release to soil, surface water and ground water)
Authors: Riess Michael , Lottes Ralf
Published: October 2020

Many construction materials contain substances that are classified as dangerous according to European chemicals legislation. A number of dangerous substances have already been banned for various reasons. For example, PCB and PCP were banned after causing significant health problems for building users as a result of being released from construction materials into indoor air. Both heavy metals and organic substances such as wood preservatives have been found to leach out of construction products, a finding that is associated with the undesirable input of these substances into water, soil and ground water. Other dangerous substances include reaction products such as prepolymers, for example, which only fully develop into a final reaction product through the action of atmospheric oxygen or curing agents, for example. In these cases, it is necessary to demonstrate that the dangerous substances will not leach out or be released in gaseous form, or that the levels which are in fact emitted do not pose any serious health concerns. The authoritative basis for assessment of the environmental or health implications of emissions is essentially provided by national legislation such as the Chemicals Prohibition Regulation or pertinent environmental laws.
Principle of public participation in environmental law of the Russian Federation
Authors: Wystorobets Eugene A.
Published: October 2020

This article addresses normative acts, decisions of the courts, practice and public relations in the field of public participation in environmental decision-making. The purpose of the present article is to develop measures for strengthening the principle itself in law application and improvement of environmental protection as a whole. Open and private data bases, content analysis methods, comparative law, formal, logic, and statistical methods were used during this work. This article offers a selection of main terms, a short description of domestic sources, a survey of several cases and practical problems. The review enables a general overview to be gained of the past, present and future of this problem in the context of Russian environmental legislation.
EU Enforcement Policy of Community Environmental law as presented in the Commission Communication on implementing European Community Environmental law
Authors: Ballesteros Marta
Published: October 2020

On 18 November 2008, the European Commission issued a Communication on Implementing European Community Environmental Law. It was accompanied by a more detailed Commission Staff Working Document. The current paper is a ClientEarth legal assessment of the enforcement and implementation policy for Community Environmental law as proposed by the Commission in this Communication. The Communication reflects the extremely good work that the legal unit in DG Environment has been undertaking for years now in the implementation of enforcement actions. It also represents a new step in establishing a coherent enforcement policy for European Community environmental law in response to new challenges. However, the Communication and the underlying enforcement policy described are incomplete and are not sufficient for achieving overall compliance with Community environmental law in Member States. On first view, the Commission’s proposals seem to constitute efforts to tackle the problem of insufficient resources so that they can be used more efficiently and greater compliance can be achieved with Community environmental law. However, it might also signal the Commission’s unstated plan, or even a strategic decision, to retreat from enforcement activities and rely more heavily on Member States to enforce Community environmental law. Any such retreat would be a derogation of the Commission’s obligations under Art. 211 of the Treaty.
This article is based on a ClientEarth discussion paper presented at a round table organised by Ecosphere on the 8th of July 2009 and takes into account the information and ideas exchanged in the debate. Representatives from different services of the European Commission including the legal unit of DG Environment, and the Legal Service, as well as from consultancies, think tanks and Environmental NGOs attended the meeting.
Practical application of Article 9 of the Aarhus Convention in EU countries: Some comparative remarks
Authors: Černý Pavel
Published: October 2020

Application of the Aarhus Convention in practice of its parties (including the European Communities) has been reflected recently by several representative studies. In spite of their partial differences, these studies come to similar conclusions with regard to the chief insufficiencies in implementation of requirements concerning access to justice in environmental matters according to Art. 9 of the Convention.
This article discusses several specific topics from this field, which can be considered crucial for legal protection of the environment in practice. More concretely: definition of terms for access to justice by individual members of public (“standing conditions”); scope of the court review of act and omissions, related to the environment; effectiveness of a court review, particularly its timeliness.
Next to the above mentioned studies, the article also refers to the contributions and discussions presented at the „International conference on the implementation of the Aarhus Convention in practice” (hereinafter “the Conference”), which was organised in April 2009 in Brno, the Czech Republic, within the scope of the Czech EU presidency. A few more general but related aspects are touched upon, namely the position of the Convention in the legal system of its parties and its relation to the EC law.
The article is based namely on the outcomes of the projects concerning the NGO experience with using the Aarhus Convention in practice, sponsored by International Visegrad Fund and Ministry for Housing, Spatial Planning and Environment of the Netherlands.
Why patents are crucial for the access of developing countries to Environmentally Sound Technologies
Authors: Benske Michael
Published: October 2020

This article demonstrates why Global Climate Funds might establish unexpected barriers to transfers of Environmentally Sound Technologies (EST) to developing countries rather than facilitating them. During political dialogues, developing countries frequently stress their discontent regarding Intellectual Property Rights (IPR) protecting EST. A typical objection raised by the Group of 771 and China reads: “The present restraint on access to advanced technologies, imposed particularly by the IPR regime, need [sic] to be lifted, […].” The Group of 77 and China expect developed countries to facilitate technology transfers and to provide other assistance by various financial and regulatory means. The proposed measures include a Global Climate Fund. At first, this article identifies the relevant actors’ interests and, to demonstrate that inter-governmental measures for tackling the Greenhouse Gas (GHG) problem are justified, carry out an analysis according to the behavioural model of the homo oeconomicus institutionalis. After that, it examines the role of IPR in the context of transfers of EST to developing countries. This article also deals with the question of what the overall objectives of technology transfer measures are and why the proposed Global Climate Fund might not be an adequate instrument for facilitating these transfers.
Chinese e-waste legislation, current status and future development
Authors: Streicher-Porte Martin , Kummer Katharina , Chi Xinwen , Denzler Stefan , Wang Xuejun
Published: October 2020

Recently, several environmental laws and regulations concerning both waste of electrical and electronic equipment (WEEE) as well as the production of electrical and electronic equipment (EEE) have been enacted. Some of them have been implemented, whilst others are in the process of implementation or revision - both in Europe and China. As the production of EEE and the treatment of WEEE are globalised, legislation of both has moved away from being an isolated ‘European phenomena’.
This paper gives a short introduction to relevant legislative processes in China and Europe and establishes differences between their current characteristics in terms of EEE and WEEE. It analyses in detail the Chinese EEE and WEEE related laws and regulations and compares the most prominent texts and their impact on producers and consumers. To conclude the technical draft of a Chinese National E-waste Law developed under the Swiss e-waste programme 'Knowledge Partnerships in e-Waste Recycling' is presented.
Quality and Speed of Administrative Decision-Making Proceedings: Tension or Balance?
Authors: Backes Chris W. , Jansen Sander
Published: October 2020

Procedures to receive a permission concerning environmental issues and procedures to receive a permit for building plants, highways, airports and so on often take long and not seldom very long. The administrative proceedings involved are very often complex. In several countries, there is an increasing desire to speed up administrative decision-making proceedings, especially in the field of complex infrastructure projects. The current economic crisis enhanced this necessity. Both developments, the incumbent economic crisis and the dissatisfaction with the current system of decision-making, resulted in planned or taken measures. With regard to these planned or implemented (legislative) measures, a possible clash may occur between, on the one hand, speedier decision-making and, on the other, the quality of the proceedings and the rights of the citizens.
In the course of the summer of 2009, the administrative law department of Maastricht University carried out a comparative law research on this issue. The research involved an exploration of the ways in which issues relating to complex decision-making procedures are dealt with in Germany, the United Kingdom, France and the Netherlands and the experiences after certain acceleration measures have been implemented. Besides analysing the relevant statutes, case law and legal writings, the researchers interviewed stakeholders who are engaged in the decision making process in practice, like civil servants, judges, advocates and representatives of environmental groups. This article is based on a selection of findings of that research.
Locus standi for environmental NGOs in Germany: The (non)implementation of the Aarhus Convention by the ‘Umweltrechtsbehelfsgesetz’ - Some critical remarks
Authors: Roller Gerhard
Published: October 2020

Access to justice for environmental NGOs in Germany is a long and troublesome story. Since the appearance of a widespread movement of environmental associations in the 1970s, there has been a struggle for the introduction of an association lawsuit in German environmental law. The campaign to open the courtrooms’ doors had been observed with scepticism by politicians and traditional lawyers, sometimes accompanied by hostility. There was deep concern that fanatic members of NGOs would bring ‘a spate of querulous actions, and the courts would be inundated by environmental litigation.’ It is therefore not surprising that the German government was not too enthusiastic about the Aarhus Convention. This of course did not hinder German representatives actively influencing the wording of the Convention in a restrictive sense during the negotiations. But even then we had to wait until a Red-Green coalition came into effect in 1998 before the Convention was signed. With the coming into force of the Aarhus Convention and the related EC directives transposing this Convention into community law, the Member States are obliged to transpose the Convention into national law. As a consequence, the traditional German concepts which confer only very limited access to the courts on NGOs have to undergo fundamental revision. However, it seems that the German legislator is not yet ready for this change. For the present, the Environmental Appeal Act that entered into force on 15 December 2006 is the latest chapter in this story – but certainly not the last.
Convergence with the Water Framework Directive in the Context of the European Neighbourhood Policy
Authors: Dupont Claire , Goldenman Gretta
Published: October 2020

In its 2010 Communication on the European Neighbourhood Policy, the European Commission stressed that “[m]any partners are showing a growing interest in EU experience, and are today increasingly willing to converge with EU environment directives. Regulatory convergence should continue to be at the core of the European Neighbourhood Policy (ENP) as well as cooperation on environmental governance.” This statement reflects the importance accorded the process of convergence within the framework of the relations of the EU with its neighbours. The term “convergence” refers to the process by which a third country aligns its legislation with EU requirements. This terminology has developed to distinguish it from the approximation process to which the candidate countries – i.e., the countries that have been accepted by the EU as on track for future EU membership – are subject.
This paper looks at the differences between both processes, taking the EU water legislation as an example. After a description of the historical background, it focuses on what is meant by convergence with the EU legislation. It considers key elements and challenges and analyses how tools developed throughout the years can support the process. Then it draws on the authors’ own experiences in Georgia and Moldova to draw lessons learnt and to make suggestions with a view to improving the convergence process.
Integrated Environmental Permitting
Authors: Tolsma Hanna D.
Published: October 2020

Citizens and businesses seeking a permit to carry out a certain activity are often confronted with a range of procedures containing a variety of different time limits, assessment criteria and legal remedies. The establishment of a new power station in the Netherlands, for example, requires a permit for construction, a permit for using or changing street access, a fire safety permit, an exemption from the land-use plan, a water permit and permits under the Dutch Environmental Management Act, the Dutch Flora and Fauna Act and the Dutch Nature Conservation Act. It is at present impossible for a person to obtain a quick and unambiguous answer from a public authority as to whether or not he may carry out a certain activity at a certain location.
Member States of the European Union such as Sweden, Germany and the Netherlands have undertaken initiatives to develop legal frameworks of integrated decision-making. Steps towards an integrated approach to the environment have also been taken at the European level. The majority of European environmental legislation still has a sector-specific nature. However, a change occurred with the IPPC Directive. The IPPC Directive requires a coordinated approach to the various emissions into the air, water and soil from industrial plants covered by the directive. In the near future the IPPC Directive will be replaced by the Directive on Industrial Emissions. The IPPC Directive prescribes a system of integrated environmental permitting.
In this article the legal instrument of integrated environmental permitting is analysed. It describes the concept of integration in the field of environmental law, discusses the integrated approach under the IPPC Directive and gives attention to the recent developments on integrated permitting in the Netherlands. Furthermore, this articles comments on substantive integrated environmental permitting and concludes with some final remarks.
‘China REACH’: Assessing the implications for non-Chinese companies producing and exporting new substances to China
Authors: Callagy Gareth
Published: October 2020

Legislation concerning the environmental management of new chemical substances in China was amended on October 15 2010 by the enactment of the Measures for the Environmental Management of New Chemical Substances by the Chinese Ministry of Environmental Protection (MEP).
Viewed in the context of the implementation of REACH and the ongoing implementation of GHS in China, the amended regulation incorporates some concepts also included in REACH such as GHS-based criteria hazard communication, registration tonnage bands, post-notification tracking and acceptance of notifications only by legal-entities within the jurisdiction of the regulation. The amended measures aim to control the environmental risk posed by new chemicals to ensure public health and ecological maintenance. Despite many significant differences existing between REACH and the China REACH, most notably in the registration scope and testing requirements, the comparison can be used as a frame of reference for non-Chinese companies formulating a compliance strategy.
Nanomaterials and European Novel Food law: The uncertain path to reasonable regulation
Authors: Schenten Julian
Published: October 2020

The objective of the present article is to examine whether current regulations at the European level are capable of adequately controlling the risks associated with engineered nanomaterials of anthropogenic origin (ENM) in food products. In this context it is crucial to examine closely the Novel Food Regulation (EC) 258/977 and its attempted revision, which recently failed. The article also includes a consideration of the legislative procedure and a discussion of the legislative bodies’ different positions. In contrast, the regulatory controls of food contact materials such as food packaging or food additives would go beyond the scope of this article. Prior to the legal analysis some remarks are made about the state of the art regarding risk assessment and the application of ENM in the food sector.
A Human Right to a Clean and Healthy Environment: Dream or Reality in Europe?
Authors: van de Venis Jan
Published: October 2020

Do we have a ‘human right to environment’ in Europe? In this short article, the author gives an introduction to (the development of) the human right to (a healthy) environment and briefly answers the question set out above. This article introduces the topic of human rights and the environment on a global scale. It sets out to inform the reader where this human rights-based approach to environmental issues came from, what tangible benefits such a right could bring and where it currently stands globally and, more specifically, in Europe under the European Convention on Human Rights. It therefore also analyses the recent Council of Europe’s Committee of Ministers refusal of a Parliamentary Assembly recommendation on acknowledging a right to environment under the European Convention.
Biopatents in Brazil
Authors: de Souza Edson Paula
Published: October 2020

Biotechnology is at the core of bioeconomy and plays a key role in modern societies. Currently, Brazil is engaged in many cutting-edge projects in the biotech sector, from energy production to promotion of health and provision of foodstuffs. Also, Brazil’s rich and complex biodiversity, which accounts for 15-20% of the entire world’s biological diversity, may provide a great source of new molecules to the industry. Moreover, awareness and use of the intellectual property system have expanded in the country and the number of patent applications filed by residents has substantially increased over the years. In fact, statistics show that filings with the Brazilian Patent Office rose from 5,666 applications in 1997 to a peak of 7,502 applications in 2004, decreasing a little in 2007 to 6,975 applications. However, due to a very particular regulatory framework, researchers and companies still find some difficulties to do research and protect their inventions in the country. This article focuses on patent protection for biotechnological inventions in Brazil and discusses the main issues arising from the existing legislation and practice.
Rights to Animal Genetic Resources – Basic facts and debates
Authors: Biber-Klemm Susette , Temmermann Michelangelo
Published: October 2020

Different strands of thinking and various lines of arguments lie behind the enquiry into the creation of rights to animal genetic resources. These are fueled by three major developments regarding livestock genetic resources: the increasing volume in trade in animal products, the scientific progress in animal breeding with the advances in genetic engineering, and the so-called erosion of animal genetic resources. This paper discusses questions of conservation and the sustainable use of animal genetic resources for food and agriculture (AnGRFA) in context with international trade and property rights. It provides an overview of the ongoing processes, the current debates and involved institutions. The question asked from a trade angle is whether and how incentives (market incentives) can be created to address the failures that lead to market concentration and uniformity of breeds. The hypothesis is that the questions of ownership and allocation of the rights to the genetic information are key and a basis for creating incentives to provide for adequate investments in traditional breeds and foster fcreativity to adapt them to specific environmental conditions and consumer preferences.
Access to environmental information: A comparative analysis of the Aarhus Convention with Brazilian Legislation
Authors: Nascimento da Nóbrega Sandra Aline
Published: October 2020

In order to get the general public more involved in decisions regarding sustainable economic development, the Brazilian Congress approved a law specifically targeting availability and access to environmental information in 2003. This law was clearly inspired by the principles of 1998 Aarhus Convention which established the procedural rights to access to environmental information, public participation and access to court in environmental matters among European countries. This paper aims to compare the Aarhus Convention – with its innovative nature and open administrative and democratic practices – with applications on access to environmental information in Brazil. It first gives a brief explanation of the Aarhus Convention, followed by an overview of access to environmental information in Brazilian legislation and its recent evolution. The paper compares Brazilian legislation and the Aarhus Convention and identifies which criteria of the Aarhus Convention regarding access to environmental information have already been introduced in Brazilian legislation. In addition, the paper discusses the actual effectiveness of Brazilian Law 10.650/03 through an empirical exercise seeking to estimate how often it has been used to access environmental information.
Unrestricted access to justice for environmental NGOs? - The decision of the ECJ on the non-conformity of § 2(1) Umweltrechtsbehelfsgesetz with Directive 2003/35 on access to justice in environmental law and the Aarhus Convention (Case C-115/09)
Authors: Lohse Eva Julia
Published: October 2020

In Case C-115/09, the ECJ has decided that – despite their wording – Art. 10a of the Directive on Environmental Impact Assessment (henceforth: Directive), which implements Art. 9(2) of the Aarhus Convention (henceforth: Convention), requires the Member States to provide unrestricted access to justice for environmental NGOs. This looks like a victory for environmental lawyers who have long advocated the introduction of an ‘altruistic group action’ (‘altruistische Verbandsklage’) in environmental matters, as Germany will have to modify its current transposition of the Directive in some way. Considering the tension between desirable effective implementation of environmental law through judicial review and an – unrequested – overly restrictive interpretation of the margin of implementation, the decision demands the authors of this article to analyse closely why “wide access of justice” (Art. 10a (3) of the Directive) could mean ‘unrestricted access’ for NGOs and why it does and should not. The authors also take a closer look at the consequences for (German) procedural law.
The EU, access to environmental information and the open society
Authors: Krämer Ludwig
Published: October 2020

The Treaties of Lisbon which entered into force at the end of 2009, underlined no less than five times that the European Union (EU) adheres to the principles of an open society. This commitment is further strengthened by the reevaluation of the EU Charter on Fundamental Rights of 20002, which obtained, through the Lisbon Treaties, the same legal value as the Lisbon Treaties themselves and which gave EU citizens a fundamental right of access to information, stressing that the EU "placed the individual at the heart of its activities". In practice, it is alarming to see how much expert opinion, research results, studies, data and facts are withheld from the interested public in EU environmental matters. Numerous data are stored and monitored by the EU administration without being made public – as if the environment were the private property of the administration and not of everybody. Administrative inertia, professional or commercial secrets, the power which is given to superior knowledge, all these contribute to the present "mafia of silence". What is worse, some groups, representing organized or vested interests, have informal means of access to data which are in the hands of the administration. This article by Ludwig Krämer analyses the practice of access to documents within the EU on the basis of several examples of legislation, and its use and interpretation by the EU Courts of Justice in the area of access to environmental information.
The Ruling of the Court of Justice in Sweetman: How to avoid a death by a thousand cuts?
Authors: Schoukens Hendrik
Published: October 2020

This paper analyses the ECJ Sweetman-Case and new developments in the judicial fixation of the scope of Art. 6(3) Habitats Directive about the permissibility of industrial or infrastructural interventions in Natura 2000 areas. It examines the exact content of the decision, along with the highly readable opinion of Advocate General Sharpston. After briefly having addressed the relevant factual background to the case, the wider implications of this ruling on the future application of the substantive protection rules laid down in the Habitats Directive are discussed. Throughout the analysis, this contribution argues that the Court’s ruling should be welcomed since it provides an additional safeguard for the EU’s most vulnerable habitats since, if applied on a broader scale, it might help to reduce the slow incremental decline of Europe’s most valuable natural habitats and species.
Transitional National Plan derogations for Large Combustion Plants under the Industrial Emissions Directive: EEB legal challenge
Authors: Schaible Christian
Published: October 2020

The Industrial Emissions Directive (IPPC Recast) 2010/75/EU of 24 November 2010 has the objective to “lay down rules designed to prevent, or where this is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole.” (Article 1) setting out the so-called “integrated approach” to prevent negative impacts on all environmental media due to a certain industrial activity.
This article illuminates shortcomings of the Industrial Emissions Directive as regards transparency in the elaboration and evaluation of certain derogations for large combustion plants. The focus lies on an EEB action concerning a Greek derogation approval decision of the European Commission, which the NGO has since contested before the General Court on 18 June 2014.
Do investor-to-state dispute settlement mechanisms fit in the EU legal system?
Authors: Carta Andrea
Published: October 2020

Investor-to-state dispute settlement (ISDS) mechanisms are a feature of international investment agreements (IIAs). They give private investors the right to initiate a claim against the State in which they made an investment, seeking redress against violations of an IIA concluded between that State and the investor’s home State.
As it is explained in this paper, the current EU policy foresees the inclusion of ISDS in EU IIAs. This raises a number of critical issues, related: i) to the appropriateness of ISDS as a mechanism for the fair administration of justice, ii) to the risks that ISDS may affect public interest (e.g. environmental and health) laws, and iii) to the compatibility of ISDS with EU law.
This article describes the framework underlying the inclusion of ISDS in EU IIAs and analyses the abovementioned issues. It discusses the concerns raised, particularly by NGOs, on the potential impact of ISDS on EU and Member States’ regulatory powers. The article outlines the EU policy on ISDS, examines some critical aspects of ISDS as a mechanism for the administration of justice, using the CETA provisions as reference, and illustrates the threats posed by ISDS to environmental and health regulations. It also highlights the challenges in preserving public authorities’ regulatory space in the context of IIAs. Furthermore, this article deals with the compatibility of ISDS with the exclusive jurisdiction of the CJEU and the principle of autonomy of EU law, and concludes with some final remarks.
Regulatory coherence in the transatlantic trade and investment partnership agreement: the case of chemicals
Authors: Bounsante Vito A.
Published: October 2020

The beginning of the negotiations for a trade and investment partnership agreement between the European Union and the United States of America was announced in February 2014 by the US president Barack Obama. Unlike traditional trade agreements the TTIP aims to include a “regulatory cluster” in the form of a regulatory coherence annex that should include procedures to minimize differences in regulation. However, the regulatory coherence chapter, according to the negotiators on both sides, will not impair each parties’ right to regulate. Therefore, diverging regulations will be allowed in order to protect health, safety, consumer, workers and the environment. Finally, the negotiators also state that no changes will be made to existing regulations. It seems apparent that these two objectives – coherence and the right to regulate, – are in stark contrast with each other. On the one hand, there is the goal to avoid and eliminate trade barriers; on the other hand, the high level of protection of EU citizens should not be undermined; in addition, no change in basic regulations is foreseen. This article outlines some difficulties in seeking regulatory coherence chapter whilst at the same time maintaining the right to choose different levels of protections. After discussing the problem of lack of transparency in the negotiations, the article focuses on the implications of regulatory cooperation for health and environmental legislation. In particular this article focuses on the case of the chemicals regulation for which discussions have advanced more in the negotiations thus far and for which there are wide differences in terms of regulations.
Enforcement of the EU ETS in the Member States
Authors: Verschuuren Jonathan , Fleurke Floor
Published: October 2020

Although the EU ETS has been operating in three trading periods for ten years and has been extensively covered by legal research, there has been remarkably little attention given to the enforcement of the ETS. Although, generally, we have seen an increasing centralization of the EU ETS, monitoring and enforcement are still largely in the hands of the emissions authorities in the states in which the EU ETS operates: 28 EU Member States plus Norway, Liechtenstein and Iceland. This article reports on the main findings of an ex-post evaluation of the legal implementation of the EU ETS at Member State level with a focus on compliance. The central research question was: Has the effectiveness of the compliance mechanism of the EU ETS improved in the third period (2013-2020)? What further improvements (if any) are necessary? To answer this question, the authors of this article have described the relevant EU law in each of the three periods, reviewed previous evaluations and relevant research projects, and evaluated the implementation of the EU ETS in selected Member States, both through existing sources and through interviews with key players in the compliance mechanism at Member State level. The Member States that the authors studied for the latter part of the project were Germany, the Netherlands, Hungary, Greece, Poland and the UK.
Access to the transposition of EU environmental law by Member States: Only if no infringement proceedings initiated
Authors: Berthier Anaïs
Published: October 2020

Ensuring a better implementation and enforcement of EU environmental law by Member States is one of the well-established commitments of the European Commission. One reason for this is the general consensus about the fact that the non-implementation of environmental law has huge repercussions, not only on the environment itself but on public health as well as the economy. However, Case C-612/13P shows that the way in which the Commission approaches this commitment is in contradiction with its goal.
This article analyses the ruling of the Court of Justice and addresses the legal reasoning behind the refusal from the EU courts to apply the Aarhus Convention to EU institutions. Furthermore, the article elaborates on the concept of investigation under Article 4(2). It also deals with the Regulation 1049/2001 and the limits the Court placed on the presumption of confidentiality established by previous case-law for documents pertaining to administrative files.