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In many countries lawyers
are working on aspects of
environmental law, often
as part of environmental
initiatives and organisations
or as legislators. However,
they generally have limited
contact with other lawy-
ers abroad, in spite of the
fact that such contact and
communication is vital for
the successful and effective
implementation of environ-
mental law.
Therefore, a group of
lawyers from various coun-
tries decided to initiate the
Environmental Law Net-
work International (elni) in
1990 to promote interna-
tional communication and
cooperation worldwide. elni
is a registered non-profi t
association under German
Law.
elni coordinates a number
of different activities in
order to facilitate the com-
munication and connections
of those interested in envi-
ronmental law around the
world.
www.elni.org
ENVIRONMENTAL
LAW NETWORK
INTERNATIONAL
RÉSEAU
INTERNATIONAL
DE DROIT DE
L´ENVIRONNEMENT
INTERNATIONALES
NETZWERK
UMWELTRECHT
Exploring CETA’ s Relation to Environment Law
Delphine Misonne
Belgium Requests an Opinion on Investment Court System
in CETA
Laurens Ankersmit
Sustainability and Precautionary Aspects of CETA Dissected
Wybe Th. Douma
The Volkswagen Scandal - Air Pollution and Administrative Inertia
Ludwig Krämer
Access to Justice: Environmental Non-Governmental
Organisations According to the Aarhus Regulation
Thirza Moolenaar and Sandra Nóbrega
Recent Developments
No 2/2016
ISSN 1618-2502
Coordinating Bureau
Three organisations currently sha-
re the organisational work of the net-
work: Öko-Institut, IESAR at the Uni-
versity of Applied Sciences in Bingen
and sofi a, the Society for Institutional
Analysis, located at the University of
Darmstadt. The person of contact is
Prof. Dr. Roller at IESAR, Bingen.
elni Review
The elni Review is a bi-annual, En-
glish language law review. It publishes
articles on environmental law, focus-
sing on European and international en-
vironmental law as well as recent de-
velopments in the EU Member States.
elni encourages its members to submit
articles to the elni Review in order
to support and further the exchange
and sharing of experiences with other
members.
The fi rst issue of the elni Review
was published in 2001. It replaced the
elni Newsletter, which was released in
1995 for the fi rst time.
The elni Review is published by
Öko-Institut (the Institute for Applied
Ecology), IESAR (the Institute for En-
vironmental Studies and Applied Re-
search, hosted by the University
of Applied Sciences in Bingen) and
sofi a (the Society for Institutional
Analysis, located at the University of
Darmstadt).
elni Conferences and Fora
elni conferences and fora are a core
element of the network. They provide
scientifi c input and the possibility for
discussion on a relevant subject of en-
vironmental law and policy for inter-
national experts. The aim is to gather
together scientists, policy makers and
young researches, providing them with
the opportunity to exchange views and
information as well as to develop new
perspectives.
The aim of the elni fora initiative is
to bring together, on a convivial basis
and in a seminar-sized group, environ-
mental lawyers living or working in
the Brussels area, who are interested in
sharing and discussing views on speci-
fi c topics related to environmental law
and policies.
Publications series
elni publishes a series of books en-
titled “Publications of the Environmen-
tal Law Network International”. Each
volume contains papers by various aut-
hors on a particular theme in environ-
mental law and in some cases is based
on the proceedings of the annual con-
ference.
elni Website: elni.org
The elni website www.elni.org con-
tains news about the network. The
members have the opportunity to sub-
mit information on interesting events
and recent studies on environmental
law issues. An index of articles provi-
des an overview of the elni Review pu-
blications. Past issues are downloada-
ble online free of charge.
elni Board of Directors
• Martin Führ - Society for Institu-
tional Analysis (sofi a), Darmstadt,
Germany;
• Jerzy Jendroska - Centrum Prawa
Ekologicznego (CPE), Wroclaw, Po-
land;
• Isabelle Larmuseau - Vlaamse
Vereniging voor Omgevingsrecht
(VVOR), Ghent, Belgium;
• Marga Robesin - Stichting Natuur
en Milieu, Utrecht, The Netherlands;
• Gerhard Roller - Institute for En-
vironmental Studies and Applied
Research (I.E.S.A.R.), Bingen, Ger-
many.
elni, c/o Institute for Environmental Studies and Applied Research
FH Bingen, Berliner Straße 109, 55411 Bingen/Germany
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
45
Editorial
The current issue of elni Review is inter alia dedi-
cated to a subject that has been on the Top Agenda
in 2016: The Comprehensive Free Trade Agreement
between the EU and Canada.
On 8 September 2016 an ELNI Forum on CETA
took place at the St. Louis Faculty of Law in Brus-
sels. A small group of environmental lawyers debat-
ed intensively different aspects of this far-reaching
agreement and its impact on environmental law in
Europe in particular. Delphine Misonne gives an
introduction on the potential impact of CETA on
environmental law, Laurens Ankersmit and Wybe
Th. Douma analyse the dispute settlement schemes
under CETA and shortcomings of the agreement
concerning sustainability and precautionary aspects.
Nicolas de Sadeleer then explains the sophisticated
ratification process for CETA and the legal uncer-
tainty surrounding it. Details of these analyses can
be found in the articles of Delphine Misonne, Lau-
rens Ankersmit and Wybe Th. Douma.
Besides a number of legal details, the interesting
general aspect of who should negotiate such types of
agreements arose during the discussion in the Fo-
rum. Given that CETA claims to be a progressive
environmental agreement (which it is obviously not),
it must be criticised that it has been negotiated only
by trade experts and not by environmental experts.
Whatever the outcome of this dossier is in the end, it
has to be noted that public pressure and the scientific
debate improved the Agreement considerably, even
though it is still not sufficient from an environmental
point of view.
Another persistent environmental issue in 2016 –
and foreseeably also well beyond – is the so-called
‘Volkswagen Scandal’; a symbol for a confidence
crisis caused by and affecting not only the VW AG
but also other major car manufacturers. A contribu-
tion by Ludwig Krämer, ‘The Volkswagen Scandal –
Air Pollution and Administrative Inertia’ deals with
the manipulation of NOx emissions from
Volkswagen diesel cars on the one hand, and the
manipulation of CO2 emissions from its diesel and
petrol cars on the other. Not all details of the manip-
ulations have been made public until now. A number
of conclusions may nevertheless already be drawn.
In this context, the editors would also like to draw
the readers’ attention to the related analysis by Dé-
fense Terre (‘Strengthening the regulation of defeat
devices in the European Union’, Legal Note, June
2016) as well as to the expert opinion by Martin
Führ for the German Bundestag's Committee of
Inquiry with respect to the car emissions affair.
A further article addresses the Aarhus Regulation
which provides an opportunity for environmental
non-governmental organisations (ENGOs) to request
an internal review of an EU institution or body that
has adopted an administrative act under environmen-
tal law, or should have done so in the case of an
alleged administrative omission. Thirza Moolenaar
and Sandra Nóbrega investigate whether the criteria
that have to be met for an ENGO to be entitled to
make such a motion are sufficiently clear, and
whether they contribute to the objective of providing
wide access for ENGOs to the internal review pro-
cedure.
This elni Review’s Recent Developments section
starts off with a report of C-673/13 Commission v.
Greenpeace and PAN Europe by Bondine Kloostra,
the representative of the two NGOs involved. In its
Judgment of 23 November 2016 the CJEU rules that
the concept of ‘emissions into the environment’ is
not limited to emissions from industrial installations.
Rather it includes the release into the environment of
substances such as pesticides and biocides. This
landmark decision will most likely influence future
access to information practice – not limited to the
context of pesticides. Lastly, Elhoucine Chougrani
examines the opportunities and the challenges in
applying environmental law and enforcing the sus-
tainable development goals in Morocco and Lynn
Gummow reports on the 5th Lucerne Law and Eco-
nomics Conference.
The editors welcome submissions of contributions to
the next elni Review until 1 April 2017. Please refer
to www.elni.org for further detail on the call and for
the author guidelines.
Gerhard Roller/ Julian Schenten
December 2016
2/16 2/16 Environmental Law Network International
54
Belgium Requests an Opinion on Investment Court System in CETA
Laurens Ankersmit
1 Introduction
On 29 of October the leaders of the Belgian federal
government and the regional and community govern-
ments reached a compromise deal over the EU-
Canada Comprehensive Economic and Trade Agree-
ment (CETA).∗1 One of the key outcomes is that the
Belgian federal government will seek the Opinion of
the European Court of Justice on the compatibility of
the Investment Court System (ICS) in Chapter Eight
of CETA with the EU Treaties. As soon as the Belgian
federal government makes the request for an Opinion,
the Court will be able to express itself on this conten-
tious legal issue. This article provides some back-
ground on the origins of the Walloon request before
explaining why ICS could potentially pose a legal
problem for the EU.
2 Wallonia’s longstanding resistance against
CETA and the resolution of 25 April of 2016
To insiders, the resistance put up by Wallonia in par-
ticular should have been no surprise. Over the past
few years, the Walloon and Brussels parliaments have
had extensive debates on the merits of CETA and
have been increasingly critical of the deal. One of the
main and more principled cause for opposition was the
inclusion of ICS in CETA, a judicial mechanism that
allows foreign investors to sue governments over a
breach of investor rights contained in the agreement.
In the Parliament of Wallonia this resulted in the
adoption of a resolution on the 25th of April 2016 (6
months before the compromise deal mentioned above)
listing the key concerns Wallonia has about CETA.2
In that resolution the very first request by the Walloon
government was to ask the Belgian federal govern-
ment: “de solliciter l’avis de la Cour de justice euro-
péenne (CJE) sur la compatibilité de l’accord avec les
Traités européens sur la base de l’article 218 (11) du
TFUE pour éviter qu’un accord incompatible avec les
Traités européens soit conclu et de ne pas procéder à
la ratification de cet accord tant que la CJE ne s’est
pas prononcée”.
In other words, the Walloon Parliament wanted to
know whether ICS is compatible with the EU Treaties,
∗An earlier version of this article appeared on the European Law Blog and on
Investment Treaty News.
1 See the statement of Belgium in the Statements to the Council minutes of
the Comprehensive Economic and Trade Agreement (CETA) between Can-
ada and the European Union and its Member States ST 13463 2016 REV 1
available at http://data.consilium.europa.eu/doc/document/ST-13463-2016-
REV-1/en/pdf.
2 Resolution of the Parliament of Wallonia of 25 April 2016 on the Compre-
hensive Economic and Trade Agreement (CETA), available at
http://nautilus.parlement-wallon.be/Archives/2015_2016/RES/212_4.pdf.
and asked the Belgian federal government to make use
of the procedure of Article 218 (11) TFEU to request
the CJEU’s opinion on the issue. In the words of the
Court, that procedure “has the aim of forestalling
complications which would result from legal disputes
concerning the compatibility with the Treaties of in-
ternational agreements binding upon the European
Union”.3 In particular, the advantage of the procedure
is to avoid “serious difficulties” for both the EU inter-
nally and for third parties that would result from a
successful challenge of the agreement after its entry
into force.4
Wallonia could not make this request itself, as this
power is reserved for the federal level of the Belgian
Government. However, Belgium is in many ways a
‘little Europe’, as its regional governments need to
authorize federal action at the international level in a
number of fields, including trade. As a result, Wal-
lonia had to broker a deal with the federal government
of Belgium in exchange for authorising Belgium’s
signature on CETA.
3 Is ICS compatible with the Treaties?
The Walloon request did not come out of the blue.
The issue of the compatibility of Investor-State Dis-
pute Settlement (ISDS) and ICS (a form of ISDS) with
the Treaties has been contentious among EU law in-
siders for a while. Recently, 101 law professors ob-
jected to ICS in an open letter because ICS is “in
strong tension with the rule of law and democratic
principles enshrined in national constitutions and
European law. Additionally, [ICS is] likely to affect
the autonomy of the European Union’s legal order, as
the investment tribunals’ binding and enforceable
decisions on state liability threaten the effective and
uniform application of EU law”.5
An increasing number of academic contributions have
also raised this issue.6 Moreover, the European Asso-
3 Opinion 1/09, the European and Community Patents Court EU:C:2011:123,
para. 47.
4 Ibid, para. 48.
5 Legal statement on investment protection and investor-state dispute settle-
ment mechanisms in TTIP and CETA (October 2016) available at
https://stop-ttip.org/wp-content/uploads/2016/10/28.10.16-Updated-Legal-
Statement_EN.pdf.
6 L. Ankersmit, The Compatibility of Investment Arbitration in EU Trade
Agreements with the EU Judicial System, Journal for European Environmen-
tal & Planning Law 13 (2016) p. 46-63; M. Cremona, Guest Editorial: Nego-
tiating the Transatlantic Trade and Investment Partnership (TTIP), Common
Market Law Review 52 (2015) 52, p. 351–362, at 360; I. Govaere, TTIP and
Dispute Settlement: Potential Consequences for the Autonomous EU Legal
Order, College of Europe Research Paper in Law 1/2016 (July 2016); J. Ko-
kott and C. Sobotta, Investment Arbitration and EU law, Cambridge Year-
book of European Legal Studies 18 (2016), p. 3-19; G. Uwera, Investor-
Environmental Law Network International 2/16
ciation of Judges (representing 44 national associa-
tions of judges) and the German Association of Judges
(representing 16,000 German judges and public prose-
cutors) have opposed ICS inter alia on the ground that
the system might not be compatible with EU law.7
Within the EU institutions and bodies, the compatibil-
ity of ISDS/ICS has clearly also been an issue. The
European Parliament in its TTIP Resolution of 8 July
2015 called upon the Commission to ensure that the
“jurisdiction of courts of the EU and of the Member
States is respected”.8 In a praiseworthy feat of trans-
parency, the opinion of the Legal Service of the Euro-
pean Parliament on the issue of compatibility was
published this summer.9
The European Economic and Social Committee in an
Opinion adopted on 27 May 2015 also stated that
“[there] are considerable EU treaty-related and con-
stitutional law concerns regarding the relations of
ISDS ruling with the EU legal order. Private arbitra-
tion courts have the capacity to make rulings which do
not comply with EU law or infringe the CFR [Charter
of Fundamental Rights]. For this reason, the EESC
feels that it is absolutely vital for compliance of ISDS
with EU law to be checked by the ECJ in a formal
procedure for requesting an opinion, before the com-
petent institutions reach a decision and before the
provisional entry into force of any IIAs [International
Investment Agreements], negotiated by the EC”.10
State Dispute Settlement (ISDS) in Future EU Investment-Related Agree-
ments: Is the Autonomy of the EU Legal Order an Obstacle?, The Law &
Practice of International Courts and Tribunals 15 (2016), p. 102-151; H.
Lenk, Investor-state arbitration under TTIP: Resolving investment disputes
in an (autonomous) EU legal order, Report for Swedish Institute for Europe-
an Policy Studies (SIEPS) (2015) 2; A. Dimopoulos, The Compatibility of
Future EU Investment Agreements with EU Law, Legal Issues of Economic
Integration 39 (2012), p. 447–471; A. Dimopoulos, The involvement of the
EU in investor-state dispute settlement: A question of responsibilities, Com-
mon Market Law Review 51 (2014), p. 1671–1720; A. Carta, Do investor-to-
state dispute settlement mechanisms fit in the EU legal system? elni (2014),
p. 30; J. Kleinheisterkamp, Investment Protection and EU Law: The Intra-
and Extra-E Dimension of The Energy Charter Treaty, Journal of Interna-
tional Economic Law 15 (2012), p. 85–109; S. Hindelang, Repellent Forces:
The CJEU and Investor-State Dispute Settlement, Archiv des Völkerrechts
53 (2015), p. 68–89; N. Lavranos, Designing an International Investor-to-
State Arbitration System after Opinion 1/09, in M. Bungenberg and C.
Herrmann (eds.), Common Commercial Policy after Lisbon 2013.
7 Deutscher Richterbund, Stellungnahme zur Errichtung eines Investi-
tionsgerichts für ttip – Vorschlag der Europäischen Kommission vom
16.09.2015 und 12.11.2015, February 2016; European Association of Judg-
es, Statement from the European Association of Judges (EAJ) on the pro-
posal from the European Commission on a new investment court system, 9
November 2015.
8 European Parliament resolution of 8 July 2015 containing the European
Parliament’s recommendations to the European Commission on the negotia-
tions for the Transatlantic Trade and Investment Partnership (TTIP)
(2014/2228(INI)).
9 Legal opinion of 1 June 2016 “Investment dispute settlement provisions in
the EU’s trade agreements" available at
http://www.europarl.europa.eu/committees/en/inta/publications.html?tab=Ot
her. See for a critical assessement ClientEarth, ‘Legal Briefing EP Legal
Service Opinion in CETA’ 5 September 2016 available at
http://www.documents.clientearth.org/wp-content/uploads/library/2016-09-
05-legal-briefing-ep-legal-service-opinion-on-ics-in-ceta-ce-en.pdf.
10 European Economic and Social Committee, 'Opinion of the European
Economic and Social Committee on Investor protection and investor to state
The legal service of the European Commission has
itself been busy fighting intra-EU bilateral investment
treaties containing ISDS. In addition to a number of
ongoing infringement proceedings, the legal service
also wrote several amicus curiae briefs contesting the
jurisdiction of the investment tribunals.11 In the Ach-
mea case, for instance, the Commission wrote: “There
are some provisions of the Dutch-Slovak BIT that
raise fundamental questions regarding compatibility
with EU law. Most prominent among these are the
provisions of the BIT providing for an investor-State
arbitral mechanism (set out in Art. 8), and the provi-
sions of the BIT providing for an inter-State arbitral
mechanism (set out in Art. 10). These provisions con-
flict with EU law on the exclusive competence of the
EU court[s] for claims which involve EU law, even for
claims where EU law would only partially be affected.
The European Commission must therefore [...] ex-
press its reservation with respect to the Arbitral Tri-
bunal's competence to arbitrate the claim brought
before it by Eureko B.V”. 12
4 The autonomy of the EU legal order and the
preliminary reference procedure as the key-
stone of Europe’s judicial system
So what are the main legal issues when assessing the
compatibility of ICS with EU law? It is clear that the
Treaties in principle permit international agreements
providing for state-to-state dispute settlement between
the EU and third countries (such as the WTO’s dispute
settlement body). Such state-to-state dispute settle-
ment mechanisms do not encroach on the powers of
the ECJ, because TFEU Part Six, Title 1, Chapter 1,
Section 5 does not grant the EU courts the power to
hear such disputes.
However, when it comes to claims by individuals
involving questions of EU law, the situation is radical-
ly different. The preliminary reference procedure in
Article 267 TFEU gives the courts of the Member
States and the European Court of Justice important
powers to resolve such cases. In fact, the ECJ itself
refers to this procedure as the “keystone” of the EU’s
judicial system.13 It is perhaps important to recall that
Article 267 TFEU was central to the ECJ’s reasoning
when it found that the Treaties constituted ”a new
legal order” that gives individuals, not just the Mem-
ber States, rights and obligations, and whose uniform
interpretation the European Court of Justice over-
sees.14
dispute settlement in EU trade and investment agreements with third coun-
tries' (27 May 2015) (emphasis added).
11 See European Commission, ‘Commission asks Member States to terminate
their intra-EU bilateral investment treaties’ IP/15/5198 18 June 2015.
12 European Commission Amicus Curiae submission as quoted by the arbitra-
tion tribunal in Achmea B.V. v. The Slovak Republic, UNCITRAL, PCA Case
No. 2008-13 (award on jurisdiction 7 December 2012), para. 193.
13 Opinion 2/13, Accession to the ECHR EU:C:2014:2454, para. 176.
14 Case 26/62, Van Gend & Loos EU:C:1963:1.
55
2/16 2/16 Environmental Law Network International
56
The ECJ has made clear in no uncertain terms that it
has the exclusive power to give definitive interpreta-
tions of EU law and therefore ensure the uniform
interpretation of EU law across Europe.15 However, as
a fundamental purpose of ICS in CETA is to enable
investors to challenge not only EU acts and decisions
based on these acts, but also national acts which might
involve EU law somehow, an ICS tribunal would have
to interpret and give meaning to EU law. Similarly to
the context of human rights law, ICS will therefore
encroach on the powers of the EU courts to rule on
questions of EU law. Furthermore, ICS in CETA does
not require the exhaustion of domestic remedies,
which would soften the risk of divergent interpretation
as well as respect the powers of the courts of the
Member States to hear claims by individuals involving
questions of EU law. ICS in CETA also does not re-
quire prior involvement of the ECJ for questions of
EU law faced by these ICS tribunals.
5 CETA’s safeguards
To be sure, the Commission has implicitly admitted
and sought to address this problem in CETA. In con-
trast to the EU – Singapore Free Trade Agreement
(FTA), Article 8.31 (2) of CETA states that its tribu-
nals “may consider” domestic law “as a matter of
fact”.16 The provision continues by stating that in
“doing so, the Tribunal shall follow the prevailing
interpretation given to the domestic law by the courts
or authorities of that Party and any meaning given to
domestic law by the Tribunal shall not be binding
upon the courts or the authorities of that Party”.
The question is whether these provisions are suffi-
cient. For one, it is hard to see how law can be consid-
ered ‘as a matter of fact’ since law is a social con-
struction. This approach is likely derived from interna-
tional law circles to make international law more ac-
ceptable to domestic legal systems.17 However, as
CETA will become an integral part of the EU legal
order, this concept will find its way into EU law with
potentially problematic consequences.18 What if the
highest courts in the Member States no longer feel
required to make preliminary references because they
can consider EU law as a matter of fact, as these tri-
bunals are allowed to do?
For another, following the prevailing interpretation
given to EU law, it begs the question of what happens
if no such interpretation exists. CILFIT makes clear
15 Opinion 2/13 Accession to the ECHR EU:C:2014:2454, para. 244-248.
16 Article 9.19 of the EU-Singapore FTA does not contain such clauses. It
merely provides that the investment tribunal shall decide whether the treat-
ment that is the subject of the claim is in breach of an obligation under the
investment protection section in accordance with the Vienna Convention on
the Law of Treaties.
17 See for a discussion J. Hepburn, CETA’s New Domestic Law Clause, EJIL:
Talk! Accessed at http://www.ejiltalk.org/cetas-new-domestic-law-clause/
(accessed 5 December 2016).
18 Case 181/73, Haegeman EU:C:1974:41, para. 5.
that this is anything but an exceptional situation.19 In
that case, the ECJ found that the highest courts in the
Member States may only refrain from the obligation to
make a preliminary reference when the “correct ap-
plication of [EU] law may be so obvious as to leave no
scope for any reasonable doubt as to the manner in
which the question raised is to be resolved”.20
Lastly, one may wonder whether stipulating that the
interpretation of domestic law is not binding is suffi-
cient. This is considering the substantial financial
consequences of the awards that are themselves bind-
ing, and the fact that ICS contains an appeal mecha-
nism, in which the appeal tribunal can further solidify
a particular interpretation of EU law.
6 Article 340 TFEU: Suing the European Union
Another problem related to the EU courts powers is
that under EU law the EU courts have exclusive juris-
diction to hear and determine actions seeking compen-
sation for damage brought under the second paragraph
of Article 340 TFEU, which covers non-contractual
liability of the European Union.21 In other words,
when looking to sue the European Union for damages,
one must go to the ECJ.
ICS in CETA introduces an alternative to such suits
for foreign investors, undermining the exclusive na-
ture of the EU courts’ powers in claims for damages.22
Under EU law a claim for damages is an autonomous
remedy, but the ECJ limits its
use.23https://www.iisd.org/itn/2016/02/29/is-isds-in-
eu-trade-agreements-legal-under-eu-law-laurens-
ankersmit/ - _ftn11 In particular, actions for damages
are inadmissible if they are used improperly as a dis-
guised action for annulment or action for failure to act.
An example would be to use an action for damages to
nullify the effects of a measure that has become defin-
itive, such as a fine. It is also very difficult, if not
impossible, to claim damages for lawful acts.24
Moreover, the Court is very wary of the potential of a
’regulatory chill if it were to accept damages claims
too easily. The Court has held that the “exercise of the
legislative function must not be hindered by the pro-
spect of actions for damages whenever the general
interest of the Community requires legislative
measures to be adopted which may adversely affect
individual
ests”.25https://www.iisd.org/itn/2016/02/29/is-isds-in-
19 Case 283/81, CILFIT EU:C:1982:335.
20 Ibid, para. 16.
21 Case C-377/09 Hanssens_Ensch v. European Community EU:C:2010:459,
para. 17.
22 See also A. Carta, supra note 6, p. 30.
23 K. Lenaerts, I. Maselis, and K. Gutman, EU procedural law (Oxford: Oxford
University Press, 2015), p. 490.
24 Joined cases C-120/06 P and C-121/06 P Fabbrica italiana accumulatori
motocarri Montecchio SpA (FIAMM) and others v Council and Commission
EU:C:2008:476, paras. 164–169.
25 Ibid., para 174.
Environmental Law Network International 2/16
eu-trade-agreements-legal-under-eu-law-laurens-
ankersmit/ - _ftn13 Bringing a claim under ICS, there-
fore, has clear advantages for investors over bringing
claims before the EU courts, putting a perverse com-
petitive pressure on those EU courts. ICS tribunals
may be less wary of regulatory risk and, therefore,
may be more inclined than the EU courts to decide
cases that could potentially chill regulation.26
7 Potential negative consequences for the
EU’s internal market
ICS in CETA also poses challenges for the proper
functioning of the EU’s internal market rules. CETA’s
ICS provides for a discriminatory remedy contrary to
Articles 45, 54, and 56 TFEU, because Canadian in-
vestors can bring claims on behalf of their EU incor-
porated companies. For example, a Canadian-owned
Slovak company could be privileged over a Dutch
company operating in Slovakia, because the Canadi-
an-owned Slovak company would have recourse to an
alternative form of dispute settlement not available to
the Dutch company.
Moreover, ICS awards can counteract national and EU
provisions imposing financial burdens on individuals
and corporations (including provisions on fees, taxes,
penalties, fines and environmental liability). While the
Commission’s view seems to differ, the problem goes
beyond mere questions of paying back unlawfully
granted state-aid.27
An undertaking such as Intel could opt to challenge
the Commission’s 1 billion Euro fine for its abuse of a
dominant position on the microprocessors market,
because it considers the Commission to have violated
several good governance principles and therefore
argue a breach of due process under the ‘fair and equi-
table treatment’ standard.28 That standard is under-
stood as protecting basic forms of good governance.29
It is to be recalled that Intel not only challenged the
Commission’s decision before the General Court argu-
ing a violation of the principle of presumption of in-
nocence and inadequate proof of unlawful conduct,
Intel also complained to the European Ombudsman
for maladministration by the Commission. The Gen-
eral Court dismissed Intel’s application for annulment,
26 J. Kleinheisterkamp, Financial Responsibility in European International
Investment Policy, International and Comparative Law Quarterly 63 (2014),
pp. 449-476.
27 European Commission, 'Concept paper: Investment in TTIP and beyond -
the path for reform', p. 5-6. The Commission only addresses the issue of
ISDS claims that resulted out of investors’ obligation to pay back unlawfully
granted state aid in violation of the fair and equitable treatment standard
contained in several BITs. The Commission does not consider in the con-
cept paper similar problems resulting from paying fines, penalties or other
financial obligations that the investor might incur when investing in the host
state.
28 R. Wish, Intel v Commission: Keep Calm and Carry on! Journal of European
Competition Law & Practice (2014), p. 1-2.
29 M. Jacob and S. Schill, ‘Fair and Equitable Treatment: Content, Practice,
Method’ in: M. Bungenberg, J. Griebel, S. Hobe (eds.), International Invest-
ment Law, 2015, pp. 700-763.
but the European Ombudsman partially sided with
Intel.30
8 Conclusion
One of the most astounding aspects of this story is that
it took the defiance of the Walloons to initiate a pre-
liminary check by the ECJ on the legality of ICS. The
Commission could have easily added the question of
compatibility of ISDS in the EU-Singapore FTA to its
request for an Opinion in Opinion 2/15.31 That opinion
was requested in July 2015, after the ECJ delivered its
Opinion 2/13. It was obvious to informed Court
watchers at the time that Opinion 2/13 raised serious
questions regarding the compatibility of ISDS and ICS
with the Treaties. Indeed, it is quite clear based on an
access-to-documents request made by ClientEarth that
the Commission’s legal service was well aware of the
potential negative implications.32
Instead of going for a ‘better safe than sorry’ approach
(the explicit purpose of the 218 (11) TFEU proce-
dure), the Commission took the political risk of nego-
tiating and concluding an agreement that could poten-
tially be annulled afterwards. That would have not
only embarrassed the EU internationally, it could have
resulted in serious constitutional law issues, because
the EU and its Member States might have faced ICS
awards that were internationally binding yet in con-
flict with EU law (not least because of the CETA
Article 30.9 (2) so-called ‘sunset clause’ allowing for
claims up to 20 years after termination of the agree-
ment). In that sense, it appears that Wallonia did Eu-
rope and its trade partners a huge favour by seeking
clarity on this issue before the EU entered into binding
commitments in international agreements containing
investor-state dispute settlement.
30 See Case T-286/09, Intel Corp. v Commission EU:T:2014:547, para. 61;
European Ombudsman, Decision of the European Ombudsman closing his
inquiry into complaint 1935/2008/FOR against the European Commission
(14 July 2009) available at
http://www.ombudsman.europa.eu/en/cases/decision.faces/en/4164/html.bo
okmark (accessed 7 December 2016).
31 Opinion 2/15: Request for an opinion submitted by the European Commis-
sion pursuant to Article 218(11) TFEU, OJ 2015 C363, p. 18–19.
32 All documents available upon request with the author, for a sample please
see http://www.documents.clientearth.org/wp-content/uploads/library/2016-
02-24-redacted-document-on-isds-and-the-principle-of-autonomy-of-eu-law-
following-opinion-2-13-ext-en.pdf.
57
Environmental Law Network International 2/16
91
Imprint
Editors: Martin Führ, Andreas Hermann, Gerhard
Roller, Julian Schenten and Claudia Schreider (née
Fricke)
Editors in charge of the current issue:
Gerhard Roller and Julian Schenten
Editor in charge of the forthcoming issue:
Martin Führ (fuehr@sofia-darmstadt.de)
The Editors would like to thank Michelle Monteforte
and Vanessa Cook (both Öko-Institut) for proofread-
ing the elni Review.
We invite authors to submit manuscripts to the Editors
by email.
The elni Review is the double-blind peer reviewed
journal of the Environmental Law Network Interna-
tional. It is distributed once or twice a year at the fol-
lowing prices: commercial users (consultants, law
firms, government administrations): € 52; private users,
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sities of Applied Sciences in Darmstadt and Bingen.
The views expressed in the articles are those of the
authors and do not necessarily reflect those of elni
Authors of this issue
Laurens Ankersmit, EU Trade & Environment
Lawyer at ClientEarth, Brussels, teacher at the Brus-
sels School of International Studies in Brussels of
the University of Kent;
lankersmit@clientearth.org.
ElHoucine Chougrani, Director of the Moroccan
Observatory for the Future Generations, Cadi Ayyad
University, Faculty of Law, Daoudiate, Marrakesh,
observermorofuge@gmail.com.
Wybe Th. Douma, Lawyer and senior researcher at
the T.M.C. Asser Institute, the Hague;
w.t.douma@asser.nl.
Lynn Gummow, Doctoral student at Lucerne Uni-
versity Faculty of Law;
lynn.gummow@unilu.ch.
Bondine Kloostra, Lawyer specialised in environ-
mental and nature conservation law, Van den Biesen
Kloostra Advocaten, Amsterdam;
bondinekloostra@vdbkadvocaten.eu.
Ludwig Krämer, Senior environmental lawyer at
ClientEarth, Brussels;
lkramer@clientearth.org.
Delphine Misonne, Professor at Université Saint-
Louis Bruxelles, FNRS Research Associate;
delphine.misonne@usaintlouis.be.
Thirza Moolenaar, Bachelor Student, Law Faculty,
European Law School, Maastricht University;
thirza.moolenaar@maastrichtuniversity.nl.
Sandra Nóbrega, PhD Candidate at Law Faculty,
Maastricht University;
sandra.nobrega@maastrichtuniversity.nl.
2/16 Environmental Law Network International
92
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The Öko-Institut (Institut für ange-
wandte Ökologie - Institute for Ap-
plied Ecology, a registered non-prot-
association) was founded in 1977. Its
founding was closely connected to the
conict over the building of the nuclear
power plant in Wyhl (on the Rhine near
the city of Freiburg, the seat of the Ins-
titute). The objective of the Institute was
and is environmental research inde-
pendent of government and industry,
for the benet of society. The results of
our research are made available of the
public.
The institute‘s mission is to analyse and
evaluate current and future environ-
mental problems, to point out risks, and
to develop and implement problem-sol-
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so, the Öko-Institut follows the guiding
principle of sustainable development.
The institute‘s activities are organized
in Divisions - Chemistry, Energy & Cli-
mate Protection, Genetic Engineering,
Sustainable Products & Material Flows,
Nuclear Engineering & Plant Safety,
and Environmental Law.
The Environmental Law Division of
the Öko-Institut:
The Environmental Law Division covers
a broad spectrum of environmental law
elaborating scientic studies for public
and private clients, consulting govern-
ments and public authorities, participa-
ting in law drafting processes and me-
diating stakeholder dialogues. Lawyers
of the Division work on international,
EU and national environmental law,
concentrating on waste management,
emission control, energy and climate
protection, nuclear, aviation and plan-
ning law.
Contact
Freiburg Head Ofce:
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The University of Applied Sciences in
Bingen was founded in 1897. It is a
practiceorientated academic institution
and runs courses in electrical enginee-
ring, computer science for engineering,
mechanical engineering, business ma-
nagement for engineering, process en-
gineering, biotechnology, agriculture,
international agricultural trade and in
environmental engineering.
The Institute for Environmental Stud-
ies and Applied Research (I.E.S.A.R.)
was founded in 2003 as an integrated
institution of the University of Applied
Sciences of Bingen. I.E.S.A.R carries
out applied research projects and ad-
visory services mainly in the areas of
environmental law and economy, en-
vironmental management and interna-
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presents itself as an interdisciplinary in-
stitution.
The Institute fulls its assignments par-
ticularly by:
• Undertaking projects in develop-ing
countries
• Realization of seminars in the areas
of environment and development
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know-how-transfer
Main areas of research
• European environmental policy
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European law
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nomic instruments
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oping countries
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tution development
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Contact
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University of Applied Sciences
Berlinstrasse 109
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Phone +49(0)6721-409-363
Fax +49(0)6721-409-110
roller@fh-bingen.de
www.fh-bingen.de
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at the University of Applied Sciences in
Darmstadt and the University of Göttin-
gen, both Germany.
The soa research group aims to sup-
port regulatory choice at every level of
public legislative bodies (EC, national
or regional). It also analyses and im-
proves the strategy of public and private
organizations.
The soa team is multidisciplinary:
Lawyers and economists are collabo-
rating with engineers as well as social
and natural scientists. The theoretical
basis is the interdisciplinary behaviour
model of homo oeconomicus institutio-
nalis, considering the formal (e.g. laws
and contracts) and informal (e.g. rules
of fairness) institutional context of indi-
vidual behaviour.
The areas of research cover
• Product policy/REACh
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• Role of standardization bodies
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tion
• Water and energy management
• Electronic public participation
• Economic opportunities deriving
from environmental legislation
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soa is working on behalf of the
• VolkswagenStiftung
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cation and Research
• Hessian Ministry of Economics
• German Institute for Standardizati-
on (DIN)
• German Federal Environmental
Agency (UBA)
• German Federal Agency for Na-ture
Conservation (BfN)
• Federal Ministry of Consumer Pro-
tection, Food and Agriculture
Contact
Darmstadt Ofce:
Prof. Dr. Martin Führ - soa
University of Applied Sciences
Haardtring 100
D-64295 Darmstadt/Germany
Phone +49(0)6151-16-8734/35/31
Fax +49(0)6151-16-8925
fuehr@soa-darmstadt.de
www.h-da.de
Göttingen Ofce:
Prof. Dr. Kilian Bizer - soa
University of Göttingen
Platz der Göttinger Sieben 3
D-37073 Göttingen/Germany
Phone +49(0)551-39-4602
Fax +49(0)551-39-19558
bizer@soa-darmstadt.de
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In many countries lawyers
are working on aspects of
environmental law, often
as part of environmental
initiatives and organisations
or as legislators. However,
they generally have limited
contact with other lawy-
ers abroad, in spite of the
fact that such contact and
communication is vital for
the successful and effective
implementation of environ-
mental law.
Therefore, a group of
lawyers from various coun-
tries decided to initiate the
Environmental Law Net-
work International (elni) in
1990 to promote interna-
tional communication and
cooperation worldwide. elni
is a registered non-prot
association under German
Law.
elni coordinates a number
of different activities in
order to facilitate the com-
munication and connections
of those interested in envi-
ronmental law around the
world.
www.elni.org
ENVIRONMENTAL
LAW NETWORK
INTERNATIONAL
RÉSEAU
INTERNATIONAL
DE DROIT DE
L´ENVIRONNEMENT
INTERNATIONALES
NETZWERK
UMWELTRECHT
Nanomaterials as priority substances under the
Water Framework Directive
Catherine Ganzleben / Steffen Foss Hansen
The Marine Strategy Framework Directive and its
implementation in Spain
Ana Barreira
Hong Kong Convention and EU Ship Recycling Regulation: Can
they change bad industrial practices soon?
Thomas Ormond
Water services and why a broad denition under the
WFD is needed to ensure the polluter pays principle
Sarolta Tripolszky
Downsizing our Water Footprint
Marga Robesin
The outcome of the UN Conference on
Sustainable Development “Rio+20”: Some critical comments
Eckard Rehbinder
Greening the Constitution. The principle of sustainable
development anchored in the Belgian Constitution
Peter De Smedt / Hendrik Schoukens / Tania Van Laer
Law and innovation in the context of nanomaterials:
Barriers to sustainable development?
Julian Schenten / Martin Führ
And further articles
No 2/2012
ISSN 1618-2502
Coordinating Bureau
Three organisations currently sha-
re the organisational work of the net-
work: Öko-Institut, IESAR at the Uni-
versity of Applied Sciences in Bingen
and soa, the Society for Institutional
Analysis, located at the University of
Darmstadt. The person of contact is
Prof. Dr. Roller at IESAR, Bingen.
elni Review
The elni Review is a bi-annual, En-
glish language law review. It publishes
articles on environmental law, focus-
sing on European and international en-
vironmental law as well as recent de-
velopments in the EU Member States.
elni encourages its members to submit
articles to the elni Review in order
to support and further the exchange
and sharing of experiences with other
members.
The rst issue of the elni Review
was published in 2001. It replaced the
elni Newsletter, which was released in
1995 for the rst time.
The elni Review is published by
Öko-Institut (the Institute for Applied
Ecology), IESAR (the Institute for En-
vironmental Studies and Applied Re-
search, hosted by the University
of Applied Sciences in Bingen) and
soa (the Society for Institutional
Analysis, located at the University of
Darmstadt).
elni Conferences and Fora
elni conferences and fora are a core
element of the network. They provide
scientic input and the possibility for
discussion on a relevant subject of en-
vironmental law and policy for inter-
national experts. The aim is to gather
together scientists, policy makers and
young researches, providing them with
the opportunity to exchange views and
information as well as to develop new
perspectives.
The aim of the elni fora initiative is
to bring together, on a convivial basis
and in a seminar-sized group, environ-
mental lawyers living or working in
the Brussels area, who are interested in
sharing and discussing views on speci-
c topics related to environmental law
and policies.
Publications series
elni publishes a series of books en-
titled “Publications of the Environmen-
tal Law Network International”. Each
volume contains papers by various aut-
hors on a particular theme in environ-
mental law and in some cases is based
on the proceedings of the annual con-
ference.
elni Website: elni.org
The elni website www.elni.org con-
tains news about the network. The
members have the opportunity to sub-
mit information on interesting events
and recent studies on environmental
law issues. An index of articles provi-
des an overview of the elni Review pu-
blications. Past issues are downloada-
ble online free of charge.
elni Board of Directors
• Martin Führ - Society for Institu-
tional Analysis (soa), Darmstadt,
Germany;
• Jerzy Jendroska - Centrum Prawa
Ekologicznego (CPE), Wroclaw, Po-
land;
• Isabelle Larmuseau - Vlaamse
Vereniging voor Omgevingsrecht
(VVOR), Ghent, Belgium;
• Marga Robesin - Stichting Natuur
en Milieu, Utrecht, The Netherlands;
• Gerhard Roller - Institute for En-
vironmental Studies and Applied
Research (I.E.S.A.R.), Bingen, Ger-
many.
elni, c/o Institute for Environmental Studies and Applied Research
FH Bingen, Berliner Straße 109, 55411 Bingen/Germany
