Direct effect, consistent interpretation and state liability are instruments developed by the CJEU for national courts to remedy conflicts between national and EU law (and may also be used in some jurisdictions to resolve national law and international law). This book will look at the ‘remedial capacity’ of these doctrines/tools from the perspective of the national court applying them. In short: what are their strengths, weaknesses, unexplored opportunities at grassroot level, and what can we learn from comparative experience in practice within Member States.
The study reveals considerable differences in the way these doctrines are handled at national level. And it is clear that these differences go beyond the challenges facing newly joined Member States where the judiciary might be expected to still be learning its way with EU law. Even within long standing EU Members there is by no means a consistency in approach. The judiciary handling environmental cases have recently established an informal cooperative network to learn from each other. We may be some years away from a time when national courts are regularly referred to not only to decisions of the Court of Justice of the European Union, but also to cases from other EU national courts to assist them in their decision-making. But if this study, which we believe to the first of its kind in this field, helps to stimulate that process, the handling of environmental law within the EU can only be improved.
From the Foreword by Lord Carnwath JSC (UK Supreme Court): "EU and National Environmental Law is a significant work which will stimulate further cooperation and cross-fertilization of ideas. I congratulate the authors and editors, and commend it to judges, practitioners and academics alike."
Prof. Jans is professor of Administrative Law at the University of Groningen. Prof. Macrory is professor of Environmental Law at University College London. Prof. Moreno Molina is professor of Administrative Law at the Universidad Carlos III de Madrid.
Foreword
Contents
Abbreviations
Chapter 1 Introduction
Jan H. Jans, Richard Macrory & Angel-Manuel Moreno Molina
1 General Remarks
Chapter 2 National Administrative Procedural Law Under EU Requirements. With a Focus on Public Participation
Gerd Winter
1 EU Principles Affecting Member State Administrative Procedural Law
2 Towards EU Standards on the Right to Be Heard and Public Participation
2.1 The Right to Be Heard
2.2 The Right to Public Participation
3 EU Standards on Court Review of Procedural Infringements
3.1 Procedural Infringements
3.2 Consequences of Procedural Failure
4 Conclusion
Chapter 3 Consistent Interpretation of EU Environmental Law
Richard Macrory, Verena Madner & Stefan Mayr
1 Context
2 Development in the Case Law of the CJEU
2.1 Shifting Justifications
2.2 Milestones in the Development of Consistent Interpretation
3 The Application of the Duty
3.1 Who is Obliged by the Duty?
3.2 What Does the Duty Apply To?
3.3 When Does the Duty Apply?
4 The Scope of the Duty
4.1 ‘As Far as Possible’ – Opportunity or Constraint?
4.2 Criminal Liability
4.3 Legal Certainty
4.4 Imposing Obligations on Individuals – the Horizontal Impact of the Doctrine
5 Conclusions
Chapter 4 Direct Effect and Consistent Interpretation: Strengths and Weaknesses of the Concepts
Ludwig Krämer
1 Introduction
2 The History
2.1 Direct Effect
2.2 Consistent Interpretation
2.3 State Liability
2.4 Environmental Principles and the Charter on Human Rights
3 The Environment, Consistent Interpretation and Direct Effect
3.1 The Direct Effect Concept
3.2 The Concept of Consistent Interpretation
4 Concluding Remarks
Chapter 5 Direct Effect and State Liability
Angel-Manuel Moreno Molina
1 Introduction
2 The Doctrine of Direct Effect and Its Application in Environmental Cases
2.1 General Questions
2.2 The Direct Effect of the Different Types of EU Rules in National Courts
2.2.1 The Direct Effect of the EU Treaties
2.2.2 The Direct Effect of International Treaties Concluded by the EU
2.2.3 The Direct Effect of Directives
2.3 The Waddenzee/Kraaijeveld Doctrine
2.4 The ‘Inter-Environnement’ Doctrine
2.5 Other Manifestations of the Direct Effect of Directives in the Environmental Arena
2.5.1 ‘Inverse’ Direct Effect
2.5.2 ‘Horizontal’ Direct Effet
2.6 Direct Effect, Administrative Agencies and the Costanzo Doctrine
3 State Liability
3.1 State Liability in the Context of Environmental Protection
3.2 State Liability in the Environmental Practice of National Courts
4 Conclusions
Chapter 6 Constitutional Review of European Environmental Law
Luc Lavrysen
1 Introduction
2 Constitutional Review of European Environmental Law by the Court of Justice
2.1 A Constitution That Does Not Bear Such Name
2.2 Fundamental Values and Rights
2.3 The CJEU’s Monopoly to Declare Legal Acts of the EU Invalid
2.4 Constitutional Environmental Law Issues Before the Court
2.4.1 Choice of Legal Basis
2.4.2 Respect for Fundamental Principles of EU Law
2.4.3 Respect of Environmental Principles
3 Constitutional Review by National Courts
3.1 National Constitutions and EU Law from an ECJ Point of View
3.2 National Constitutions and EU Law from a National Point of View
3.3 National Case Law
4 The EU and the Internal Allocation of Powers Within Member States
4.1 The EU Approach
4.2 The National Approach
Chapter 7 Judicial Dialogue, Judicial Competition and Global Environmental Law. A Case Study on The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters
Jan H. Jans
1 Introduction
2 The Aarhus Convention and the EU
3 Introducing the ‘Players’
3.1 Aarhus Compliance Committee Cum Annexis
3.2 The Court of Justice of the European Union and the European Court on Human Rights
3.3 National (Constitutional) Courts
4 The Question of ‘Who Decides Who Has Access to Justice’ in Environmental Matters is a Difficult One
4.1 The Slovak Bears Case
4.2 The Case of Law of the Dutch Council of State
5 Limiting Access to Justice for NGOs
5.1 The Djurgården Case
5.2 The Trianel Case
5.3 The Slovak Bears Case
5.4 The Stichting Natuur en Milieu and Pesticide Action Network Europe Case
6 Final Conclusions
Chapter 8 Effective Justice? Synthesis Report of the Study on the Implementation of Articles 9(3) and 9(4) of the Aarhus Convention in Seventeen of the Member States
of the European Union
Jan Darpö
1 Introduction
1.1 Background
1.2 The Questionnaire and the National Reports
1.3 The Synthesis Report
2 Outcomes from the National Reports
2.1 General Background on the Implementation of Article 9(3) of the Aarhus Convention
2.2 Standing for Individuals, Groups and ENGOs
2.3 Access to What?
2.4 Costs in the Environmental Procedure
2.5 Effectiveness in the Environmental Procedure
3 Proposals and Further Challenges
3.1 The Legislative Framework
3.1.1 The Four Options
3.1.2 A Need for a Directive on Access to Justice
3.1.3 The Prior Proposal for an Access to Justice Directive (2003/0246/COM)
3.2 General Issues on Judicial Review
3.2.1 Introduction
3.2.2 The Scope of Application
3.2.3 The Relationship Between Article 9(2) and Article 9(3)
3.2.4 Civil Law Action in Court
3.3 Standing for the Members of the Public
3.3.1 Definition of ‘the Members of the Public’
3.3.2 Standing for Individuals
3.3.3 Standing for ENGOs and Groups
3.3.4 An Anti-Discrimination Clause
3.3.5 Participation as a Prerequisite for Standing
3.4 The Intensity or Scope of the Review
3.4.1 Introduction
3.4.2 An Express Provision on the Scope of the Review
3.5 Administrative Omissions
3.5.1 Introduction
3.5.2 A Prescribed Procedure for the Handling of Administrative Omissions
3.6 Costs in the Environmental Procedure
3.6.1 Introduction
3.6.2 Express Provision on ‘Not Prohibitively Expensive’
3.6.3 The Application of the Loser Pays Principle
3.6.4 Experts’ Costs
3.6.5 Alternative Dispute Resolution
3.7 Effectiveness in the Procedure
3.7.1 Introduction
3.7.2 Criteria for Injunctive Relief
3.7.3 Bonds or Cross-Undertakings in Damages
3.7.4 Express Provision on Timeliness
3.7.5 Malicious or Capricious Actions
3.8 Some Closing Remarks
4 Summarizing the Recommendations
Chapter 9 Austria
Verena Madner
1 Preliminary Remarks
2 Direct Effect and State Liability
3 Consistent Interpretation
4 State Liability
5 Procedural Barriers
6 Constitutional Issues
7 References to the CJEU
Chapter 10 Belgium
Luc Lavrysen
1 Context
2 Application of International and European Law by the Courts
2.1 Introduction
3 Direct Effect of EU Law
4 Consistent/sympathetic Interpretation
5 Supremacy of EU Law
6 State Liability
7 National Courts Considering EU Law on Their Own Motion
8 National Review of ‘Constitutionality’ of EU Law
9 Submissions to CJEU for Preliminary Rulings
Chapter 11 Croatia
Lana Ofak
1 Incorporation of EU Law Within the National Legal System
2 Consistent Interpretation
3 Direct Effect and State Liability
4 Procedural Barriers
5 Constitutional Issues
Chapter 12 Czech Republic
Vojtech Vomacka & Ilona Jancarova
1 Incorporation of EU Law
2 Consistent Interpretation
3 Environmental Principles
4 Compliance with Provisions of EU Law
5 Direct Effect
6 Procedural Barriers
7 Conclusion
Chapter 13 Denmark
Peter Pagh
1 The Danish Legal System – Constitutional Aspects
2 Dualistic Approach Towards International Law
3 EU Law at Danish Courts
4 EU Doctrines of Efficiency Before Danish Courts
5 Consistent Interpretation in Danish Environmental Case Law
6 Direct Effect and State Liability in Danish Environmental Case Law
7 Legal Remedies and Procedural Barriers
8 Latest Development – No Questioning the Discretion of Local Authorities
Chapter 14 Germany
Bernhard Wegener & Gerd Winter
1 Direct Effect Doctrine
1.1 EIA Directive
1.2 Birds and Habitats Directives
2 Consistent/Sympathetic Interpretation
3 State Liability
4 National Courts Considering EU Law on Their Own Motion
5 National Procedural Rules
6 National Courts and the Legality of EU Legislation
Chapter 15 Hungary
Gyula Bándi
1 Context
2 Constitutional Background
3 Supremacy of EU Law
4 Direct Effect
5 Consistent Interpretation
6 State Liability Issues
7 Problems with National Procedural Rules
8 Interpretation in General by National Courts
9 National Checking of ‘Constitutionality’ and EU Law
Chapter 16 Italy
Massimiliano Montini
1 Incorporation of EU Law
2 Consistent Interpretation
3 Direct Effect and State Liability
4 Procedural Barriers
5 Constitutional Issues
6 References to the CJEU
7 Conclusion
Chapter 17 The Netherlands
Jan H. Jans
1 Context
2 The Relationship Between Direct Effect and Consistent Interpretation
3 Consistent Interpretation
4 Direct Effect
5 Procedural Aspects
Chapter 18 Portugal
Alexandra Aragão
1 Consistent Interpretation
2 Direct Effect
3 State Liability
4 Procedural Barriers
4 Constitutional Issues
Chapter 19 Slovenia
Rajko Knez & Verena Rošic
1 Introduction
2 Consistent Interpretation
3 The Direct Effect Doctrine
4 Procedural Barriers
5 Constitutional Issues
6 Conclusion
Chapter 20 Spain
Agustín García-Ureta & Angel-Manuel Moreno Molina
1 Introduction
2 EU Law and Spanish Law
3 Consistent Interpretation
4 Direct Effect Doctrine and State Liability
3.1 Direct Effect
4.2 State Liability
5 Procedural Matters and Barriers
6 References to the ECJ
Chapter 21 United Kingdom
Richard Macrory
1 Context
2 Environmental Law and the EU Doctrines
3 Direct Effect
3.1 Substantive Areas
3.2 General Conditions for Applicability of Direct Effect
4 Consistent/Sympathetic Interpretation
5 Francovich State Liability
6 National Courts Considering EU Law of Their Own Motion
7 Procedural Rules
7.1 Limitation Periods
7.2 Judicial Discretion as to Remedies
8 Referrals to the Court of Justice of the European Union
Index
