J.H. Jans

‘Gold Plating’ of European Environmental Measures?

Minimum harmonization in European environmental law essentially means that the Member States have the power to lay down more stringent standards in this area of regulation than those laid down by European legislation. However, there are indications which seem to suggest that Member States make very little use of their powers to lay down or maintain more stringent national standards. The general question to be dealt with in this paper is whether Member States actually use their power to lay down or maintain more stringent environmental standards after European harmonization. Based upon the papers and discussion at the meeting of the Avosetta Group of European Environmental Lawyers in Monção (Portugal), 6 and 7th February 2009, this paper aims to paint an impressionist picture of the contemporary practice of gold plating (or not) in the Member States.

Who is the referee? Access to justice in a globalised legal order

This article discusses the judgment of the ECJ in Case C-240/09 Lesoochranarske zoskupenie. It argues that, in a globalised legal order, questions like “who has the right to have access to justice” and “who decides who has access to justice” are difficult to answer.

European Law and the Inapplicability of the ‘Speciality Principle’

This article considers to what extent European law invites – or requires – inapplicability of the so called ‘speciality principle’ in Dutch administrative law. I shall be concentrating on the question to what extent an administrative authority considering whether or not to grant a permit is permitted, or required, to take public interests into account other than those of the permit system in question, and specifically those based on European law. More particularly I will be discussing whether an administrative authority is permitted, or even required, to refuse a permit or other decision on the ground that it is contrary to European law obligations, even when the objectives of the applicable European law are broader than the assessment framework laid down by the national legislation on which the decision is based. I will also be referring to the opposite situation: Is an administrative authority permitted, or perhaps required, to grant a permit or other decision, despite the constraints of the assessment framework of national law, in order to avoid taking a decision that contravenes European law?

The Consequential Effect of European Law in Respect of the Requirement of Due Care

This paper is an attempt to trace the obligations for public authorities arising from Article 3:2 of the Dutch Algemene wet bestuursrecht against the background of the principle of precedence and the doctrine of direct effect, precisely in order to prevent them from coming into conflict with European law. The paper shows that public authorities have duty to investigate the implications of European law on any proposed decision. Public authorities are also obliged to investigate whether or not the legislation on which their executive authority is based is compatible with European law. This duty also covers legislation from other authorities.

Competence Remains Competence? Reopening Decisions that Violate Community Law

This paper discusses the question what should administrative bodies do in cases where they have adopted decisions that turn out to be contrary to Community law, but these decisions have become final because the parties concerned have not made use of the possibilities of judicial review available to them.