Pub Date : 2021-02-10DOI: 10.1163/18760104-18010002
L. Squintani
{"title":"Is Aarhus Still a Progressive Force?","authors":"L. Squintani","doi":"10.1163/18760104-18010002","DOIUrl":"https://doi.org/10.1163/18760104-18010002","url":null,"abstract":"","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48663767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-02-10DOI: 10.1163/18760104-18010007
E. Zębek, D. Solodov
In environmental criminal cases, forensic examinations are of particular relevance and create the basis for judicial decisions. In the article, four criminal cases concerning different types of environmental crimes were described to show current challenges and shortcomings in the area of environmental protection through criminal law in Poland, and the role of the experts in the process of proof. Special attention was paid to the forensic examinations of the plant and animal world within Nature 2000 sites, which are appeared to be the most challenging. The authors also addressed the issue of the compliance of domestic criminal law and its enforcement with the provisions of the Directive 2008/99/ec of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law.
{"title":"Environmental Forensic Examinations in Poland: a Case Study","authors":"E. Zębek, D. Solodov","doi":"10.1163/18760104-18010007","DOIUrl":"https://doi.org/10.1163/18760104-18010007","url":null,"abstract":"\u0000In environmental criminal cases, forensic examinations are of particular relevance and create the basis for judicial decisions. In the article, four criminal cases concerning different types of environmental crimes were described to show current challenges and shortcomings in the area of environmental protection through criminal law in Poland, and the role of the experts in the process of proof. Special attention was paid to the forensic examinations of the plant and animal world within Nature 2000 sites, which are appeared to be the most challenging. The authors also addressed the issue of the compliance of domestic criminal law and its enforcement with the provisions of the Directive 2008/99/ec of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44590929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-02-10DOI: 10.1163/18760104-18010005
M. Michalak, Przemysław Kledzik
The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus. According to its provisions each state Part shall, within the framework of the national legal order, ensure that members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law. At the same time, it contains regulations specifying the criteria that constitute the basis for determining persons enjoying rights to access justice with respect to national legal orders. Poland, being one of the state Parties, introduced into national legal order special provisions enabling implementation of the Aarhus Convention, including regulations concerning parties to proceedings in environmental matters. The aim of the study is to analyse and assess these regulations in the light of the requirements adopted in the Aarhus Convention and to formulate general conclusions in the field of key issues of the international and European environmental law and policy.
{"title":"The Aarhus Convention and Polish Regulations Concerning Parties to Proceedings for Issuing the eia Decisions","authors":"M. Michalak, Przemysław Kledzik","doi":"10.1163/18760104-18010005","DOIUrl":"https://doi.org/10.1163/18760104-18010005","url":null,"abstract":"\u0000The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus. According to its provisions each state Part shall, within the framework of the national legal order, ensure that members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law. At the same time, it contains regulations specifying the criteria that constitute the basis for determining persons enjoying rights to access justice with respect to national legal orders. Poland, being one of the state Parties, introduced into national legal order special provisions enabling implementation of the Aarhus Convention, including regulations concerning parties to proceedings in environmental matters. The aim of the study is to analyse and assess these regulations in the light of the requirements adopted in the Aarhus Convention and to formulate general conclusions in the field of key issues of the international and European environmental law and policy.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44758221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-08DOI: 10.1163/18760104-202a001
David Hadroušek
The boundaries of EU waste legislation are drawn by the definition of “waste”. This is also true of the Waste Shipments Regulation. What if the authorities of dispatch and destination disagree on the classification of a particular substance? A recent judgment of the EU Court of Justice shows that the rule according to which, in case of such a disagreement, the substance “shall be treated as if it were waste” is in the end of limited value. There is no way the European Commission or the Member State of (typically) destination can win their case on this basis.
{"title":"Definition of “Waste” in Cross-Border Context: Un-Typical Story of TPS-NOLO (Geobal)","authors":"David Hadroušek","doi":"10.1163/18760104-202a001","DOIUrl":"https://doi.org/10.1163/18760104-202a001","url":null,"abstract":"\u0000The boundaries of EU waste legislation are drawn by the definition of “waste”. This is also true of the Waste Shipments Regulation. What if the authorities of dispatch and destination disagree on the classification of a particular substance? A recent judgment of the EU Court of Justice shows that the rule according to which, in case of such a disagreement, the substance “shall be treated as if it were waste” is in the end of limited value. There is no way the European Commission or the Member State of (typically) destination can win their case on this basis.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46163234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-13DOI: 10.1163/18760104-01704004
Delphine Misonne
In the judgment Deutsche Umwelthilfe (C-752/18) of December 2019, the Court of Justice of the European Union (ecj) addresses the situation where a referring court has already ordered a public authority to adopt traffic bans, based upon the need to comply with Directive 2008/50 on air quality, but is confronted, together with the non-governmental organization which is at the initiative of the lawsuit, to the public authority’s persistent refusal to comply with that injunction, even though it has become final. In such awkward situation and due to the lack of success of other avenues, is a national court entitled – and possibly even obliged – to impose coercive detention on officials, by virtue of the right to an effective remedy and the obligation to ensure effective legal protection in the fields covered by EU law, asked the referring Court? It is not surprising that the Court of Justice sat as the Grand Chamber for delivering the preliminary ruling. The case is a landmark on the right to an effective remedy and on the right to liberty, in a context of procedural autonomy. The case is also essential in the way it embraces human health and adds a higher step in the ascending line gradually constructed by the ecj on the binding force of EU law on air quality standards. The ecj decides that EU law only empowers and even obliges a national court to have recourse to the privation of liberty of a public official, like a Minister-President, if this is provided for in a domestic legal basis, which is sufficiently accessible, precise and foreseeable in its application. This contribution observes that, if the judgement may look like a victoire à la Pyrrhus for the environmental association and if it confirms that EU environmental law remains systemically dependent upon the choices made at domestic level on enforcement matters, the judgment also truly consolidates the right to effective judicial protection and the right to an effective remedy, in more normal circumstances and when human health is in the balance. It also cements the direct effect of Directive 2008/50 on ambient air quality and associated rights for individuals.
{"title":"Arm Wrestling around Air Quality and Effective Judicial Protection. Can Arrogant Resistance to EU Law-related Orders Put You in Jail?","authors":"Delphine Misonne","doi":"10.1163/18760104-01704004","DOIUrl":"https://doi.org/10.1163/18760104-01704004","url":null,"abstract":"\u0000In the judgment Deutsche Umwelthilfe (C-752/18) of December 2019, the Court of Justice of the European Union (ecj) addresses the situation where a referring court has already ordered a public authority to adopt traffic bans, based upon the need to comply with Directive 2008/50 on air quality, but is confronted, together with the non-governmental organization which is at the initiative of the lawsuit, to the public authority’s persistent refusal to comply with that injunction, even though it has become final.\u0000In such awkward situation and due to the lack of success of other avenues, is a national court entitled – and possibly even obliged – to impose coercive detention on officials, by virtue of the right to an effective remedy and the obligation to ensure effective legal protection in the fields covered by EU law, asked the referring Court?\u0000It is not surprising that the Court of Justice sat as the Grand Chamber for delivering the preliminary ruling. The case is a landmark on the right to an effective remedy and on the right to liberty, in a context of procedural autonomy. The case is also essential in the way it embraces human health and adds a higher step in the ascending line gradually constructed by the ecj on the binding force of EU law on air quality standards.\u0000The ecj decides that EU law only empowers and even obliges a national court to have recourse to the privation of liberty of a public official, like a Minister-President, if this is provided for in a domestic legal basis, which is sufficiently accessible, precise and foreseeable in its application.\u0000This contribution observes that, if the judgement may look like a victoire à la Pyrrhus for the environmental association and if it confirms that EU environmental law remains systemically dependent upon the choices made at domestic level on enforcement matters, the judgment also truly consolidates the right to effective judicial protection and the right to an effective remedy, in more normal circumstances and when human health is in the balance. It also cements the direct effect of Directive 2008/50 on ambient air quality and associated rights for individuals.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45259472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-13DOI: 10.1163/18760104-01704001
L. Squintani
{"title":"Another Brexit Hard Reality – in Thanks to Advocate General Sharpston","authors":"L. Squintani","doi":"10.1163/18760104-01704001","DOIUrl":"https://doi.org/10.1163/18760104-01704001","url":null,"abstract":"","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41708379","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-13DOI: 10.1163/18760104-01704005
Katarzyna Święch-Kujawska
Ambient air is one of the most essential natural resources. Its quality directly impacts the health of living organisms. Thus it determines the scale of public spending as a consequence of atmospheric pollution. At the same time, due to the properties of this resource, the problem of its protection has a transnational, global dimension. Therefore, states should undertake and constantly intensify activities the goal of which is to meet not only ambient air quality norms, but also those norms which will allow an effective impact on the improvement of its quality. Instruments and institutions falling under various branches of the law, including the tax law, are used for this purpose. A thermal upgrade relief was introduced to the Polish tax system at the beginning of 2019. The basis and principles of its application were defined in the personal income tax act. The paper presents substantiated use of tax instruments in the protection of ambient air, the legal basis and principles of application of the discussed tax preference. The conducted analysis gave rise to the formulation of de lege lata and de lege ferenda conclusions.
{"title":"Tax and Legal Instruments of Protection of Ambient Air as Seen in the Example of the Thermal Upgrade Relief","authors":"Katarzyna Święch-Kujawska","doi":"10.1163/18760104-01704005","DOIUrl":"https://doi.org/10.1163/18760104-01704005","url":null,"abstract":"\u0000Ambient air is one of the most essential natural resources. Its quality directly impacts the health of living organisms. Thus it determines the scale of public spending as a consequence of atmospheric pollution. At the same time, due to the properties of this resource, the problem of its protection has a transnational, global dimension. Therefore, states should undertake and constantly intensify activities the goal of which is to meet not only ambient air quality norms, but also those norms which will allow an effective impact on the improvement of its quality. Instruments and institutions falling under various branches of the law, including the tax law, are used for this purpose.\u0000A thermal upgrade relief was introduced to the Polish tax system at the beginning of 2019. The basis and principles of its application were defined in the personal income tax act. The paper presents substantiated use of tax instruments in the protection of ambient air, the legal basis and principles of application of the discussed tax preference. The conducted analysis gave rise to the formulation of de lege lata and de lege ferenda conclusions.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49104956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-13DOI: 10.1163/18760104-01704003
J. Jendrośka
The article present the key elements of the access to justice pillar of the Arhus Convention against the background of its legislative history, conceptual approaches and motivations laying behind certain provisions. On this basis, the article identifies and briefly indicates the main interpretation dilemmas regarding specific provisions of paragraphs 1, 2 and 3 of Article 9 as well as those which apply to access to justice pillar as a whole, in particular the interpretation dilemmas regarding the internal relations between these provisions and the role of this pillar in relation to the other pillars, in particular the public participation pillar. The conclusion is that while the structure of Article 9 is quite clear, as a result of the negotiations certain terms or formulations were introduced which not always convey a clear legal norm and therefore require a thorough examination and certain interpretation. In this context a holistic approach is advocated with the aim to see the Convention as certain logical system in which textual (literal) interpretation of the Convention’s provisions is supplemented with – and give priority to – the systemic, purposive and even historical interpretations.
{"title":"Access to Justice in the Aarhus Convention – Genesis, Legislative History and Overview of the Main Interpretation Dilemmas","authors":"J. Jendrośka","doi":"10.1163/18760104-01704003","DOIUrl":"https://doi.org/10.1163/18760104-01704003","url":null,"abstract":"\u0000The article present the key elements of the access to justice pillar of the Arhus Convention against the background of its legislative history, conceptual approaches and motivations laying behind certain provisions. On this basis, the article identifies and briefly indicates the main interpretation dilemmas regarding specific provisions of paragraphs 1, 2 and 3 of Article 9 as well as those which apply to access to justice pillar as a whole, in particular the interpretation dilemmas regarding the internal relations between these provisions and the role of this pillar in relation to the other pillars, in particular the public participation pillar. The conclusion is that while the structure of Article 9 is quite clear, as a result of the negotiations certain terms or formulations were introduced which not always convey a clear legal norm and therefore require a thorough examination and certain interpretation. In this context a holistic approach is advocated with the aim to see the Convention as certain logical system in which textual (literal) interpretation of the Convention’s provisions is supplemented with – and give priority to – the systemic, purposive and even historical interpretations.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43410305","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-10DOI: 10.1163/18760104-01703004
C. Backes, G. V. D. Veen
The final verdict to the Urgenda case provided by the Dutch Supreme Court has been called a victory in the fight to limit climate change and a milestone in public interest litigation, at least in the Netherlands. As a consequence, the Dutch state will have to reduce ghg-emissions by 25% compared with 1990 at the end of 2020. The judgment has attracted widespread acclaim for being ‘courageous’ and exploring unknown legal territory. However, a closer look at the reasoning of the Court of Appeal and the Supreme Court still leaves many questions, which are address in this manuscript.
{"title":"Urgenda: the Final Judgment of the Dutch Supreme Court","authors":"C. Backes, G. V. D. Veen","doi":"10.1163/18760104-01703004","DOIUrl":"https://doi.org/10.1163/18760104-01703004","url":null,"abstract":"The final verdict to the Urgenda case provided by the Dutch Supreme Court has been called a victory in the fight to limit climate change and a milestone in public interest litigation, at least in the Netherlands. As a consequence, the Dutch state will have to reduce ghg-emissions by 25% compared with 1990 at the end of 2020. The judgment has attracted widespread acclaim for being ‘courageous’ and exploring unknown legal territory. However, a closer look at the reasoning of the Court of Appeal and the Supreme Court still leaves many questions, which are address in this manuscript.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01703004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"65021181","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-10DOI: 10.1163/18760104-01703002
L. Squintani
This issue of jeepl is dedicated to the relationship among climate change, sus-tainability and human rights. First, we provide a first legal analysis of the Green Deal of the European Commission. Ludwig Krämer ’s legal analysis is surely a welcome aid to digest this comprehensive plan and develop new research agenda’s. which
{"title":"Environmental Protection and Human Rights: Recent Developments and Recurring Questions","authors":"L. Squintani","doi":"10.1163/18760104-01703002","DOIUrl":"https://doi.org/10.1163/18760104-01703002","url":null,"abstract":"This issue of jeepl is dedicated to the relationship among climate change, sus-tainability and human rights. First, we provide a first legal analysis of the Green Deal of the European Commission. Ludwig Krämer ’s legal analysis is surely a welcome aid to digest this comprehensive plan and develop new research agenda’s. which","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01703002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49424756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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