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ISSN 1618-2502 No 2/2016 Coordinating Bureau The aim of the elni fora initiative is Three organisations currently sha- to bring together, on a convivial basis and in a seminar-sized group, environ- In many countries lawyers re the organisational work of the net- ENVIRONMENTAL work: Öko-Institut, IESAR at the Uni- mental lawyers living or working in LAW NETWORK the Brussels area, who are interested in are working on aspects of versity of Applied Sciences in Bingen INTERNATIONAL environmental law, often and sofi a, the Society for Institutional sharing and discussing views on speci- Analysis, located at the University of fi c topics related to environmental law as part of environmental Darmstadt. The person of contact is and policies. initiatives and organisations Prof. Dr. Roller at IESAR, Bingen. RÉSEAU or as legislators. However, Publications series elni Review elni publishes a series of books en- INTERNATIONAL they generally have limited The elni Review is a bi-annual, En- titled “Publications of the Environmen- DE DROIT DE contact with other lawy- glish language law review. It publishes tal Law Network International”. Each L´ENVIRONNEMENT articles on environmental law, focus- volume contains papers by various aut- ers abroad, in spite of the sing on European and international en- hors on a particular theme in environ- fact that such contact and vironmental law as well as recent de- mental law and in some cases is based on the proceedings of the annual con- communication is vital for velopments in the EU Member States. INTERNATIONALES elni encourages its members to submit ference. NETZWERK the successful and effective articles to the elni Review in order implementation of environ- to support and further the exchange elni Website: elni.org UMWELTRECHT and sharing of experiences with other The elni website www.elni.org con- mental law. members. tains news about the network. The members have the opportunity to sub- Exploring CETA’ s Relation to Environment Law Therefore, a group of The fi rst issue of the elni Review mit information on interesting events was published in 2001. It replaced the and recent studies on environmental Delphine Misonne lawyers from various coun- elni Newsletter, which was released in law issues. An index of articles provi- tries decided to initiate the 1995 for the fi rst time. des an overview of the elni Review pu- Belgium Requests an Opinion on Investment Court System Environmental Law Net- blications. Past issues are downloada- The elni Review is published by ble online free of charge. in CETA work International (elni) in Öko-Institut (the Institute for Applied Laurens Ankersmit 1990 to promote interna- Ecology), IESAR (the Institute for En- elni Board of Directors • Martin Führ - Society for Institu- tional communication and vironmental Studies and Applied Re- search, hosted by the University tional Analysis (sofi a), Darmstadt, Sustainability and Precautionary Aspects of CETA Dissected cooperation worldwide. elni of Applied Sciences in Bingen) and Germany; is a registered non-profi t sofi a (the Society for Institutional • Jerzy Jendroska - Centrum Prawa Wybe Th. Douma Analysis, located at the University of Ekologicznego (CPE), Wroclaw, Po- association under German Darmstadt). land; Law. • Isabelle Larmuseau - Vlaamse The Volkswagen Scandal - Air Pollution and Administrative Inertia elni Conferences and Fora Vereniging voor Omgevingsrecht Ludwig Krämer elni conferences and fora are a core (VVOR), Ghent, Belgium; elni coordinates a number element of the network. They provide • Marga Robesin - Stichting Natuur of different activities in scientifi c input and the possibility for en Milieu, Utrecht, The Netherlands; Access to Justice: Environmental Non-Governmental discussion on a relevant subject of en- • Gerhard Roller - Institute for En- Organisations According to the Aarhus Regulation order to facilitate the com- vironmental law and policy for inter- vironmental Studies and Applied munication and connections national experts. The aim is to gather Research (I.E.S.A.R.), Bingen, Ger- Thirza Moolenaar and Sandra Nóbrega of those interested in envi- together scientists, policy makers and many. young researches, providing them with ronmental law around the the opportunity to exchange views and Recent Developments world. information as well as to develop new perspectives. elni, c/o Institute for Environmental Studies and Applied Research FH Bingen, Berliner Straße 109, 55411 Bingen/Germany www.elni.org 2/16 Environmental Law Network International CONTENTS Editorial ....................................................................................................................................................................... 45 Articles Exploring CETA’ s Relation to Environment Law ....................................................................................................... 46 Delphine Misonne Belgium Requests an Opinion on Investment Court System in CETA ....................................................................... 54 Laurens Ankersmit Sustainability and Precautionary Aspects of CETA Dissected ................................................................................... 58 Wybe Th. Douma The Volkswagen Scandal - Air Pollution and Administrative Inertia ........................................................................... 64 Ludwig Krämer Access to Justice: Environmental Non-Governmental Organisations according to the Aarhus Regulation ............... 76 Thirza Moolenaar and Sandra Nóbrega Recent Developments Report of Case C-673/13 Commission v Greenpeace and PAN Europe .................................................................... 85 Bondine Kloostra Environmental Law in Morocco: Opportunities and Challenges .................................................................................. 86 Elhoucine Chougrani Conference report: 5th Lucerne Law and Economics Conference .............................................................................. 90 Lynn Gummow Imprint ......................................................................................................................................................................... 91 Authors of this issue ................................................................................................................................................... 91 elni Membership ......................................................................................................................................................... 92 Environmental Law Network International 2/16 Editorial The current issue of elni Review is inter alia dedi- In this context, the editors would also like to draw cated to a subject that has been on the Top Agenda the readers’ attention to the related analysis by Dé- in 2016: The Comprehensive Free Trade Agreement fense Terre (‘Strengthening the regulation of defeat between the EU and Canada. devices in the European Union’, Legal Note, June On 8 September 2016 an ELNI Forum on CETA 2016) as well as to the expert opinion by Martin took place at the St. Louis Faculty of Law in Brus- Führ for the German Bundestag's Committee of sels. A small group of environmental lawyers debat- Inquiry with respect to the car emissions affair. ed intensively different aspects of this far-reaching A further article addresses the Aarhus Regulation agreement and its impact on environmental law in which provides an opportunity for environmental Europe in particular. Delphine Misonne gives an non-governmental organisations (ENGOs) to request introduction on the potential impact of CETA on an internal review of an EU institution or body that environmental law, Laurens Ankersmit and Wybe has adopted an administrative act under environmen- Th. Douma analyse the dispute settlement schemes tal law, or should have done so in the case of an under CETA and shortcomings of the agreement alleged administrative omission. Thirza Moolenaar concerning sustainability and precautionary aspects. and Sandra Nóbrega investigate whether the criteria Nicolas de Sadeleer then explains the sophisticated that have to be met for an ENGO to be entitled to ratification process for CETA and the legal uncer- make such a motion are sufficiently clear, and tainty surrounding it. Details of these analyses can whether they contribute to the objective of providing be found in the articles of Delphine Misonne, Lau- wide access for ENGOs to the internal review pro- rens Ankersmit and Wybe Th. Douma. cedure. Besides a number of legal details, the interesting This elni Review’s Recent Developments section general aspect of who should negotiate such types of starts off with a report of C-673/13 Commission v. agreements arose during the discussion in the Fo- Greenpeace and PAN Europe by Bondine Kloostra, rum. Given that CETA claims to be a progressive the representative of the two NGOs involved. In its environmental agreement (which it is obviously not), Judgment of 23 November 2016 the CJEU rules that it must be criticised that it has been negotiated only the concept of ‘emissions into the environment’ is by trade experts and not by environmental experts. not limited to emissions from industrial installations. Whatever the outcome of this dossier is in the end, it Rather it includes the release into the environment of has to be noted that public pressure and the scientific substances such as pesticides and biocides. This debate improved the Agreement considerably, even landmark decision will most likely influence future though it is still not sufficient
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