Lorenzo Squintani

‘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.

The Aarhus Paradox: Time to Speak about Equal Opportunities in Environmental Governance

Last year the twenty years from the starting of the negotiations for the Aarhus Convention were accompanied with quite some attention from the academic community to the manner in which the Aarhus rights of access to information, public participation and effective judicial protection are implemented in the eu and its member states. Judicial protection and Article x of the Rio Convention were indeed the core topics of the iucn ael Colloquium, the eelf Conference, and the eelf Workshop with the European Commission about which we wrote in the previous jeepl number. Seminal judgments from the European Union (eu) courts confirm that the Aarhus Convention is not a paper tiger (Van Wolferen 2013). What, due to the absence of both the United States of America and Canada at the negotiation table, could have been considered a treaty confirming the status quo existing in the eu does have an impact on the legal orders of the eu and its member states (Jendroska, Aarhus Convention and Community Law: the Interplay, jeepl 2005). The Trianel, Altrip, Commission v Germany trilogy, discussed by Eliantonio & Grashof in the previous jeepl issue, is exemplary of the profound impact that the Aarhus Convention is having on the daily life of those living and operating in the eu and beyond. Not only judicial protection, but also access to information and public participation procedures at eu and national level have been amended to meet the Aarhus commitments. An overview of the compliance reports of the Aarhus

Judicial Cooperation in Environmental Matters: Mapping National Courts’ Behaviour in Follow-up Cases

The need to ensure a uniform interpretation and effective application of the large corpus of EU environmental regulation in the jurisdictions of the Member States remains a task of pivotal importance for the Court of Justice of the European Union (CJEU). A quick look at the CURIA database reveals that many judgments are handed down every year to clarify the meaning of EU environmental provisions. It is therefore important to study the proper functioning of the tandem composed of the CJEU and the national courts in this field of EU law. In that sense, this article responds to Bogojevic’s call ‘to draw a grander map of judicial dialogues initiated across various Member States’. More specifically, the topic investigated by this article is how Dutch courts have followed up on responses received from the CJEU to their preliminary reference requests in the field of EU environmental law, until January 2017. Almost all the cases we have retrieved from the Netherlands show various degrees of willingness to cooperate with the CJEU. This article highlights the existence of three trends: full cooperation, gapped cooperation and withdrawn cooperation.

Strengths and Weaknesses of the Dutch Implementation of the Water Framework Directive

The Netherlands has a long and fascinating history of water management. The main features of the Dutch water governance system for the implementation of the wfd are its regional water authorities based on hydrological scales and powers to regulate, decide and raise taxes for their water tasks. Their functional approach and the decentralised character make the regional water authorities very efficient and effective. It is therefore understandable that eu institutions and other Member States consider the Dutch system an interesting potential source of inspiration for other jurisdictions. Yet, it is not all gold what shines. This paper highlights the strength and weakness elements of the Dutch water governance system under the wfd. It exposes several points of concern. When considering using the Dutch experience as a source of inspiration in other Member States, these concerns should be taken in due account.

Judicial Protection against Plans and Programmes Affecting the Environment: A Backdoor Solution to Get an Answer from Luxembourg

Despite the importance of access to justice in the context of plans and programmes affecting the environment, no single EU secondary law measure requires Member States to ensure effective judicial protection against such acts, and thus access to the preliminary reference procedure. At national level, this could lead to the absence of procedures to ensure effective judicial protection against plans and programmes. The Netherlands is used in this contribution as an example of the presence of such a lacuna. We argue that the lack of effective judicial protection against plans and programmes affecting the environment is in breach of both the Aarhus Convention and EU law. The duty to reconsider definitive acts, as established under the case law of the Court of Justice of the European Union, can serve as a short-term solution to offer effective judicial protection by the backdoor.