Forest and forestry policy between the EU and its Member States

Trees and forests in Europe have never been centre stage the way they are now. Until a couple of years ago, forest-related concerns of European citizens focused mainly on international deforestation in tropical forests. The aggravation of the double climate and biodiversity crisis has significantly increased European citizens’ interest in the EU forests as irreplaceable carbon sinks and reservoirs of biodiversity. The pressure of public opinion on EU forest policies therefore is on the rise, also due to the fact that the more Europe takes action vis-à-vis third countries’ forest protection, the more its domestic agenda must be effective and credible; a case in point is the news about systematic illegal harvesting of primeval forests in Eastern European states such as Poland’s well-known Bielowieza, Romania (where the murder of official rangers sparked outrage across Europe), and Slovakia, which resonated powerfully. Citizens’ concerns are not ill-founded: European forests, in fact, are generally not in good ecological condition. Recent scientific reports further paint a worrying picture. According to the 2020 State of Nature Report by the European Environment Agency, less than 15% of assessed woodland and forest habitats are favourable, while up to 84% were assessed as unfavourable-inadequate. The EU Joint Research Centre assessment of ecosystems concludes that “the condition of EU forests is poor, and there are serious concerns regarding upward trends of several pressures and degrading condition indicators”. Even the sustainability of current harvesting levels is subject to debate. Overall, the current intensive use of forests will need to be better balanced against the objectives of carbon sink preservation and biodiversity protection. This ’greener‘ approach to forests has sparked a heated debate in the EU institutions as well as among stakeholders and NGOs, all seeking to influence in some way the future forest policy of the EU. This debate includes some legal issues.

Product policies for a Circular Economy: elni 2020 event cycle “Green Deal – A way forward for EU environmental legislation?”

In 2020, elni organized an event cycle under the all-embracing question “Green Deal – A way forward for EU environmental legislation?” consisting of four events. Due to the corona pandemic all events were organized as online webinars. The third event took place on 14 October 2020 and dealt with product policies for a circular economy.

Better reporting of science to improve regulatory decision-making

The Society of Environmental Toxicology and Chemistry (SETAC) introduces recommendations for reporting ecotoxicity studies. The purpose of this is to facilitate the use of these studies in research as well as regulatory assessments. Compliance with these reporting recommendations will depend on individual researchers as well as scientific journals’ willingness to adopt and promote them.

The Hoge Raad judgment of 20 December 2019 in the Urgenda case: an overcautious policy for reducing GHG emissions breaches Articles 2 and 8 of the European Convention on Human Rights

The judgment of the Hoge Raad (hereafter HR) given on 20 December 2019 in the Urgenda case upheld the Court of Appeal judgment of 9 October 2018 ruling on a collective interest action brought by the Urgenda Foundation on behalf of 886 Dutch citizens objecting to the inadequacy of measures to reduce greenhouse gas (GHG) emissions in the Netherlands. The HR largely endorsed the particularly detailed advisory opinions delivered on 13 September 2019 by Procurator General F.F. Langemeijer and Advocate General M.H. Wissink. The HR judgment is of particular interest in view of the personal, temporal and substantive scope of Articles 2 and 8 of the European Convention on Human Rights (hereafter ECHR). In recent years there has been an increasing debate on the link between climate change and positive obligations of a preventive nature that are incumbent upon States under human rights law. In the landmark Urgenda case, the HR held that, given the severity of the impact of climate change, the Dutch State is subject to a duty of care in accordance with Articles 2 (right to life) and 8 (right to privacy and family life) ECHR, which have direct effect, and is required to adopt mitigating measures. These measures must involve a 25% reduction of GHG emissions by the end of 2020, instead of the government's projected reduction of 20%. This target is deemed to be necessary so as to limit the concentration of GHG in the atmosphere to 450 ppm in order to prevent the dangerous climate change that would be associated with any temperature rise in excess of 2°C.

Gene drives and the EU

With the discovery of the CRISPR/Cas9 method in 2012, the global research on gene drives - the deliberate release of genetically modified animals and plants into the environment - increased spectacularly, as the new methods are seen in particular as means to extinct vector-transmitted diseases such as malaria or dengue fever, or support agricultural production. The contribution examines the legality of gene drive releases within the EU and describes the efforts to find some international consensus on gene drive releases. As genetically modified animals, such as mosquitoes, which are released elsewhere, might also reach and spread in Europe, the EU has an interest to actively participate in the international discussions and bring in its experience with GMO legislation.

Market Opportunities for “More Sustainable Chemistry” Through the REACH Regulation - Results from a Case Study of the Global Supply Chains in the Textile and Sporting Goods Industry

The report outlines the results of the research project ‘Market opportunities for “more sustainable chemistry” through the REACH Regulation (Sustainable Sporting Goods – SuSport)’. The aim of the project completed in 2018 is to support ‘more sustainable chemistry’ in the textile supply chain and to broaden the view from the ‘reactive’ compliance position to a ‘proactive’ – beyond compliance perspective. Strategically, this approach is based on the following consideration: those who still want to be ‘compliant’ tomorrow have to act ‘beyond compliance’ today. Such a strategy not only guarantees legal compliance, but also opens up new market opportunities. Relevant actors participating in the transdisciplinary research project are mainly manufacturers of textile chemicals (organised in Germany in the TEGEWA association, partner in the SuSport project) as well as companies that manufacture and sell textile products, such as clothing and sporting goods (for sporting goods in Germany organised in the BSI, also project partner). However, since the project’s subject addresses a transformation process of the global textile supply chains, all other actors involved in the production processes must also be taken into account.

Remedying Failures to Conduct Environmental Impact Assessment, Should Not Result in a Game of Snakes and Ladders. Comment on Court of Justice Case C-261/18 of 12 November 2019

The author of this article comments on a November 2019 CJEU ruling following the ‘Derrybrien case’ concerning EIA in Ireland. According to the author, the judgement has profound implications for several legal questions concerning, i.a., obligations to remedy and state liability.

International Conference on Green Chemistry on 5th /6th November 2018 in Vienna

Under the Austrian EU presidency, the Austrian Ministry for Sustainability and Tourism (BMNT) organised a conference on Green Chemistry on 5th/6th November 2018 in Vienna. This article outlines key findings of the conference. The conference aimed to gather chemical as well as policy experts, stakeholders and various practitioners of green chemistry to discuss the current scientific status in this field, but also the need and opportunities for integrating the principles of green chemistry in European chemicals legislation. The event discussed perspectives how to foster and better integrate into the legal frameworks the principles of ‘Green Chemistry’, which guide the design of chemical substances, products and processes to avoid hazards and reduce resource use – thus offering potentials for industries to ensure their compliance and also for ‘Circular Economies’.

Tricky Relationships: Chemicals, Waste and Product Legislation

The authors of this contribution comment on the ‘tricky relationships’ of chemicals, waste and product legislation. Considering the interfaces and intersections of these frameworks they formulate eminent policy recommendations aimed to ensure that ‘Circular Economies’ are capable of avoiding the ‘recycling’ of problematic chemical substances present in (waste) raw materials.

Strategic Environmental Assessment: The Term “Plans and Programmes” as Interpreted by the European Court of Justice

One of the key terms of the SEA Directive is ‘Plans and Programmes’, defining the range of application of strategic environmental assessment. Although this notion has a high degree of relevance, the Directive itself abstains from a clear-cut definition. It rather presupposes what is meant and only lays down for which specific plans and programmes SEA is mandatory. Two provisions deal with the matter: Article 2 (Definitions) and Article 3 (‘Scope’). The European Court of Justice interprets these provisions broadly, as it has pointed out several times. This view is based on the general intention of the SEA Directive to provide for a high level of protection of the environment, as laid down in its Article 1, and on its objective to subject plans and programmes which are likely to have significant effects on the environment to an environmental assessment. Thus, the Court extends its general understanding of the EIA Directive (2011/92/EU) also to the SEA Directive – an argument which, in view of the close relationship and far-reaching similarities of these directives, certainly seems adequate, since Article 3(1) of the SEA Directive makes it clear that SEA is required for plans and programmes due to the effects on the environment they have when implemented. A parallel provision exists in Article 2(1) of the EIA Directive. This contribution outlines the main elements of these provisions as interpreted by the Court. It begins by briefly addressing the Court’s views regarding Article 2 lit. (a), and then deals with the various components of Article 3(1) to (4).