Judgment TTK, of 13 July 2017, clears the air (and land) on environmental liability in the EU as Trump keeps tumbling on climate issues

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by Ana Torres Rego, student of the Master's degree in EU Law of UMinho

Living in the most powerful technological society carries with it advanced innovation and a better quality of life, while simultaneously, a massive number of challenges to deal with, mainly at the environment field. As the progress goes on, the ozone hole gets bigger, the temperatures are crazily increasing, the icebergs in Antarctic are melting and biodiversity is being lost. The planet as a huge ecosystem, where everything flows cyclically and harmonious, is suffering huge threats due to human ambition, every single day.

Constructed under an economic structure, the European Union soon realised that without taking care of Mother Nature, so much progress and improvement would be worthless for the next generations, once their planet would be destroyed if nothing interrupts the rhythm of the consumption of Earth’s resources. Accordingly, the decrease of fossil fuel dependency – which primarily contributes to side effects of global warming caused by the consequent emissions of carbon dioxide – is the trickiest and demanding subject that Member States are concerned about, in the scope of such matters. Actually, that’s because there’s a complex paradox demanding urgent answers between, on one hand, the economic competition and the need to protect the environment through green economic measures, on the other.

So, in order to fight against the climate change, the European Union is one of the world potencies that have signed the Paris Agreement, shaped in the United Nations Framework Convention on Climate Change, where we find some of the actions to be taken as of 2020, aiming at lowering the rates of toxic emissions. Recently, the United States of America officially walked out on this agreement, just as one of the many protectionist decisions that already characterise the administration of President Trump. Against this backdrop, once again, capitalism, ambition and the struggle against globalisation join forces and become louder than everything else, and here, concretely, above oxygen itself.

However, the rest of the world is awaken for these sensitive questions, and fortunately, has been able to notice how severe can be the endurance of this constant human harmful behavior for the soil, water and atmosphere. For instance, Europe, by witnessing and being aware of all the damages committed against natural heritage, takes environment as an important tool in favor a deeper and real integration. Based on a precautionary approach, which is grounded on the prevention principle, the polluter-pays principle and the provider-gets principle, the incorporation of the sustainable environment development is underneath all European policies. In all areas, it is a goal to achieve, in the light of the content of the Articles 191 and 193 TFEU. It’s a gigantic step to face effectively and efficiently this worldwide problem.

Therefore, the polluter-pays-principle is one of the guiding lines of the European environment politics in general, and also of the Directive 2004/35/EC of the European Parliament and of the Council, of 21 April 2004, on environmental liability with regard to the prevention and remedying of environmental damage, in compliance with the recital nº 2. The essence of this principle is defined by the directive as the way of prevention and remedying environmental damage, meaning that an economic operator, whose activity has had as a consequence a concrete and quantifiable environmental damage, or even just an imminent threat of such damage, is financially liable for repairing it. Once it is absolutely clear the causal link established between the damage and the identified polluter, the cost of necessary preventive or remedial measures shall be supported by the agent that committed the damage or induced a serious risk. This principle intends to minimize the human footprint which results from the excessive exploitation.

However, its extension reaches so far as a truthfully expression of the commitment enshrined in the Treaty, that for several times, the Court of Justice of European Union, was asked to clarify the practical consequences of the enforcement of this principle. Following the settled case-law of the Court of Justice on this topic, the density of this principle has been prominently developed since 1999, in the case Standley and Others (C‑293/97). Some decisions following this path such Van de Walle and Others, in 2014 (C‑1/03), Commune de Mesquer, in 2008 (C‑188/07), Futura Immobiliare and Others, in 2009, (C‑254/08), ERG and Others in 2010 (C‑378/08, C‑379/08, C‑380/08), and Fipa Group and Others, in 2015 (C‑534/13).

Recently, the Court of Justice interpreted this principle to answer the question whether the owner of a leased-out plot of land may be held liable due to waste illegally incinerated in his property if that owner did not identify who was the actual user of the land or prove that the owner himself bears no responsibility for the damage caused. Taking a deeper look in the matter, in the judgement Túrkevei Tejtermelő Kft. v. Országos Környezetvédelmi és Természetvédelmi Főfelügyelőség, [July 2017 (C-129/16)], what the Hungarian referring court really wants to be sure of is if a national legislation which identifies a category of persons – in addition to operators using the land on which unlawful pollution has been produced – which is jointly liable for such environmental damage, namely the owners of the land. It provides that without being necessary to establish a causal link between the conduct of the owners and the pollution found to have occurred, it can be applied according to the spirit of provisions of Directive 2004/35, pursuant the content of Articles 191 and 193 TFEU.

On paragraph 37 of the judgment, the Court starts establishing that the polluter-pays principle expressed in Article 191(2) TFEU, is oriented at the actions at the EU level and because of that that provision cannot be relied on as such by individuals in order to exclude the application of national legislation in an area covered by environmental policy for which there is no EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question.  It means that, even if the strict requirements of the principle are not filled in by national legislation, when there’s a gap of European regulation on the legal national framework, and according with the level of protection assigned by the Charter of Fundamental Rights of the European Union, the national legislation establishing joint liability between the owner of the land on which the pollution occurred and the polluter is certainly without prejudice the primacy of European Union law. In view of all the above considerations, this decision is the perfect reflection of the cooperation needed between the European Union and the Member States, as the only way to be successful on this road to sustainability – a road in which the EU seems to have taken further steps considering the retreat of neighbours in our global village.

Picture credits: Untitled  by SD-Pictures.

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