Environmental Justice and European Union Law

Abstract

The contribution examines to what extent European Union environmental law has directly or indirectly contributed to environmental injustice in the EU Member States. It examines one by one the different environmental legislative acts which the EU has adopted in order to find out whether minorities have been treated or were allowed to be treated differently from the rest of the population. It concludes that the existing environmental injustice within the EU is not due to the environmental legislation that was adopted by the EU, but rather due to its application in practice. The contribution indicates ways to improve the present situation, but concludes that changes for the better are likely to take time.

Full text

Department of European Public Law
Faculty of Law – University of Zagreb
Croatian Yearbook of European Law and Policy
ISSN 1848-9958 (Online) | ISSN 1845-5662 (Print)
Journal webpage: https://www.cyelp.com
Environmental Justice and European Union Law
Ludwig Krämer
Suggested citation: L Krämer, ‘Environmental Justice and European Union Law’
(2020) 16 CYELP 1.
DOI: 10.3935/cyelp.16.2020.369
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1
CYELP 16 [2020] 1-23
ENVIRONMENTAL JUSTICE
AND EUROPEAN UNION LAW
Ludwig Krämer*
Abstract: The contribution examines to what extent European Union
environmental law has directly or indirectly contributed to environ-
mental injustice in the EU Member States. It examines one by one
the different environmental legislative acts which the EU has adopt-
ed in order to fi nd out whether minorities have been treated or were
allowed to be treated differently from the rest of the population. It
concludes that the existing environmental injustice within the EU is
not due to the environmental legislation that was adopted by the EU,
but rather due to its application in practice. The contribution indicates
ways to improve the present situation, but concludes that changes for
the better are likely to take time.
Keywords: EU environmental legislation, ethnic minorities, environmen-
tal discrimination, citizen rights, better application of laws, Roma people.
1 Minorities in the EU
‘Environmental justice’ is a movement which started in the 1980s in
the United States. It originated when people discovered that infrastruc-
ture with polluting or other negative environmental effects − such as
polluting industrial installations (power plants, refi neries), waste land-
fi lls or incinerators, motorways, electricity lines, airport runways − were
preferably placed in areas with coloured or socially disadvantaged pop-
ulations.1 This concern about discrimination because of ‘race or class’
entered the US civil rights movement and gained considerable politi-
cal infl uence. Later, the quest for environmental justice was expanded
and was combined with worries about the global North-South divide,
the question how it could be possible to reconcile continuous economic
growth and the limited resources of planet Earth, as well as the general
‘degrowth’ movement.2
* The author is a lawyer. He served for more than 30 years in the environmental depart-
ment of the European Commission. Email: kramer.ludwig@hotmail.com. DOI: 10.3935/
cyelp.16.2020.369.
1 See the fi rst publication in this regard: R Bullard, ‘Solid Waste Sites and the Black Hous-
ton Community’ (1983) 53 Sociological Inquiry 273.
2 See F Demaria and others, ‘What Is Degrowth? From an Activist Slogan to a Social Move-
ment’ (2013) 22 Environmental Values 191; J Martinez-Alier, ‘Environmental Justice and
Economic Degrowth. An Alliance between Two Movements’ (2012) 23(1) Capitalism, Nature,
Socialism 51.

2 Ludwig Krämer: Environmental Justice and European Union Law
The present contribution will follow the defi nition of environmental
justice which was developed by the US Environmental Protection Agency,
according to which:
environmental justice means the fair and meaningful involvement of all
people regardless of race, colour, national origin, or income with respect
to the development, implementation and enforcement of environmental
laws, regulations and policies. It will be achieved, when everyone en-
joys: the same degree of protection from environmental and health haz-
ards and equal access to the decision-making process to have a healthy
environment in which to live, learn and work.3
The contribution will examine, to what extent the European Union
(EU), which has signifi cantly infl uenced the political, economic, social
and environmental development of the European continent in the last
fi fty years, has directly or indirectly contributed, through its environ-
mental legislation, to environmental injustice towards socially discrimi-
nated or disadvantaged groups of the population, in particular by plac-
ing environmentally relevant infrastructures in places (cities, provinces,
etc) which were ‘lagging behind’;4 it will also consider, whether EU envi-
ronmental legislation and policy has had the effect of imposing a higher
burden on ethnic or other minorities or socially disadvantaged popula-
tions.5 The essential question is, thus, whether parts of the population in
the EU are treated worse than other parts or whether the impact of EU
environmental law on them is greater than on other parts. The contri-
bution will neither enter into discussions on the merits of the ‘degrowth’
movement nor will it discuss whether EU environmental law and policy
has had a greater negative impact on peripheral than on the core EU
Member States.6
The situation of minorities in Europe is not easily comparable to
that of the United States. The term ‘ethnic minority’ has not found a
common, generally accepted defi nition in Europe, despite decades-long
efforts. A separate language might be one of the criteria to defi ne an
ethnic minority, but it is certainly not suffi cient. Whether the Kashubs
in Poland, the Sorbs in Germany or groups of a population who have a
language of their own − often enough, the language of a neighbouring
country − should be considered an ethnic minority, is contested; this is
3 US Environmental Protection Agency <www.epa.gov/environmentaljustice> accessed 21
June 2020.
4 Expression used in Article 176 TFEU.
5 The assumption is that while ‘the entrance to the Paris Ritz Hotel is equally possible to
everybody’, de facto there is some unequal treatment between the haves and the have-nots.
6 This is the conclusion of D PetriÊ, ‘Environmental Justice in the European Union: A Crit-
ical Reassessment’ (2019) Croatian Yearbook of European Law and Policy 215.

3
CYELP 16 [2020] 1-23
strengthened by the designation of Bretons, Corsicans or Alsatians as
ethnic minorities, or persons who use the Hungarian language, but live
in countries other than Hungary. Undoubtedly, the Roma people are an
ethnic minority. The European Union does not have to the same extent
neighbourhoods which correspond to the ‘black neighbourhoods’ in the
United States, though urban districts, particularly, might be in a social-
ly similar situation to the neighbourhoods in the USA. EU immigrants
from third countries, especially from Africa, but also from Arabia or Lat-
in America, do not systematically live concentrated in communities, but
are often mixed with the general population. There are, though, districts
− in the Paris suburbs, in the south of Rome, in some areas of Madrid
and Berlin and in numerous other agglomerations − where mainly co-
loured people or immigrants live.
The ethnic minority of the Roma counts about 10 to 12 million peo-
ple in Europe,7 who live in different Member States and are, even in the
twenty-fi rst century, the object of frequent discrimination. Segregated,
separate and diffuse housing conditions, and living in slums or shanty
towns, continue to be a reality for them in several Member States, despite
offi cial policy efforts to avoid Roma citizens living in separate villages
or urban districts and to promote intermingling with other parts of the
population.8
An ethnic minority which lives in a coherent geographical region is
the Sami population, with an estimated number of 90,000 to 150,000
persons who live in the North of Finland, Sweden, Norway and Russia.
The Sami population complains in particular of extractive industry ac-
tivities in their region, which affect their lifestyle. As the Sami are less
mobile in settling outside the traditional Sami regions, their environ-
mental problems are mainly linked to land use and other decisions con-
cerning their region.
Most EU Member States have workers, who come from other coun-
tries. Some examples are Ukrainians in Poland, Syrian and Turkish
workers in Germany, Romanian and Bulgarian workers in France and
Spain, Serbs and Bosniacs in Croatia, or Brazilians in Portugal. Their
7 See Commission, ‘An EU framework for national Roma integration strategies up to 2020’
COM (2011) 173. This communication estimated (p 15) the number of Roma in Bulgaria at
750,000 (10.33% of the total population), Slovakia 500,000 (9.17%), Romania 1,850,000
(8.32%), Hungary 700,000 (7.05%) Spain 725,000 (1.57%) and France 400,000 (0.62%). See
also the Commission progress report, COM (2018) 785.
8 Limited fi ndings exist on the exact locations of Roma housing, though there are several
studies on the poor quality of housing. See, for example, European Union Agency for Fun-
damental Rights (FRA), ‘The Situation of Roma EU Citizens Moving to and Settling in Other
EU Member States’ (2009); FRA, ‘Second EU Minorities and Discrimination Survey: Roma
− Selected Findings’ (2018).

4 Ludwig Krämer: Environmental Justice and European Union Law
integration with the local population varies considerably, as do their
economic and social disadvantages. Migrants from Africa, Arabia and
South America, who might try not to stay concentrated in separate com-
munities, but mix with the general population, often fi nd themselves
more or less forced to live in separate districts, such as in the suburbs of
Paris, Rome, Madrid, Berlin, Naples or numerous other urban agglomer-
ations. Their settlements are frequently of lower quality, are close to in-
dustrial areas, big roads or other infrastructures which affect the quality
of life. The exposure of persons living in such districts or settlements to
negative environmental impacts is often greater than that of other parts
of the population.9
Overall, the EU does not have a repartition of the population similar
to the black neighbourhoods of the USA, and neither does it for socially
underprivileged persons. This makes it almost impossible to place dan-
gerous, polluting or land-using (infra-)structures more or less systemat-
ically in disadvantaged neighbourhoods.
2 EU law and polluting activities
2.1 The location of private dwellings
Under EU law, competence for town and country planning lies with
the Member States. This includes the planning and construction of new
urban quarters, of social housing, road, water and energy supply, etc.
Exceptionally, there may be provisions on town and country planning
adopted at the EU level. However, such measures have to be adopted
unanimously, so that each Member State has the right of veto.10 The
principle that Member States shall themselves decide where they place
infrastructure, such as industrial − including nuclear! − installations,
motorways, airports or waterways, is also refl ected in Article 172(2)
TFEU. According to this provision, projects belonging to the trans-Eu-
ropean networks for energy, transport or telecommunication require the
approval of the Member State concerned.
Before a larger infrastructure project or a project on an industrial
installation is approved, EU law requires an environmental impact as-
sessment, whose objective is to minimise the negative environmental ef-
fects of the project. The fi nal decision to permit the project rests with the
9 See European Environment Agency, ‘Unequal Exposure and Unequal Impacts: Social
Vulnerability to Air Pollution, Noise and Extreme Temperatures in Europe’ EEA Report
22/2018.
10 See Article 192(2) TFEU: ‘[…] the Council acting unanimously […] shall adopt […] mea-
sures affecting: town and country planning […]’.

5
CYELP 16 [2020] 1-23
respective Member State.11 EU legislation on motorways, airports, indus-
trial and nuclear installations12 does not contain provisions as to the lo-
cation of the project. When an industrial installation handles dangerous
substances, the Member State’s land-use policies ensure an appropriate
safety distance to residential areas.13 The Directive on landfi lls requires
that the Member State’s decision on the location of a landfi ll takes into
consideration requirements relating to the distance from the boundary
of the site to residential and recreation areas.14 The Directive on fl ood
risks asked Member States to develop fl ood risk management plans in
order to reduce the adverse consequences of fl ooding for human health
or the environment; these plans have to be regularly updated.15
The conclusion of this short overview is that EU legislation does not
impose provisions on Member States as regards the location of infra-
structure projects or polluting industrial installations. Decisions in this
regard are thus purely national decisions.
Another issue is the implementation and enforcement of EU legisla-
tion. This might be illustrated by a specifi c example. The landfi ll of Pata
Rât is situated on the outskirts of Cluj-Napoca (Romania). It is not autho-
rised and therefore should have been closed down according to Directive
1999/31, in 2009 at the latest. About 1,800 people, mostly Roma, live on
the landfi ll and in its immediate surroundings. In 2014, the Commission
started formal proceedings against Romania which led to the rendering
of a judgment in 2018 according to which Romania had not complied with
EU law by not closing down Pata Rât.16 However, by end of April 2020, Pata
11 Directive 2011/92 on the assessment of the effects of certain public and private projects
on the environment [2012] OJ L26/1.
12 See Directive 2010/75 on industrial emissions [2010] OJ L334/17; Directive 2015/2193
on medium combustion plants [2015] OJ L313/1; Directive 2009/71/Euratom on nuclear
installations [2009] OJ L172/18. There is no specifi c EU legislation on motorways or air-
ports.
13 Directive 2012/18 on the control of major-accident hazards involving dangerous sub-
stances [2018] OJ L197/1, art 13. This directive does not apply to nuclear installations and
to pipelines.
14 Directive 1999/31 on landfi lls of waste [1999] OJ L182/1, annex I.1.
15 Directive 2007/60 on the assessment and management of fl ood risks [2007] OJ L288/27,
art 7(2).
16 Case C-301/17 Commission v Romania ECLI:EU:C:2018:846. The case concerned 68
landfi lls in Romania. In contrast to other cases which the CJEU decided, these 68 landfi lls
were not individually mentioned, so that the public concerned in Romania was not informed
whether a landfi ll in its neighbourhood comes under the judgment. Pata Rât belongs to the
68 landfi lls in question. See European Environmental Bureau (EEB), ‘Pushed to the Waste-
lands: Environmental Racism against Roma Communities in Central and Eastern Europe’,
2020, 29. In the past, the Commission also undertook court action with regard to one single
landfi ll. See, for example, Case C-626/16 Commission v Slovakia ECLI:EU:C:2018:525.

6 Ludwig Krämer: Environmental Justice and European Union Law
Rât had still not been closed.17 A procedure by the Commission against
Romania threatening it with fi nancial sanctions for non-compliance had
not been initiated.18 And the problem of providing for social housing for
the Roma people who live on or close to the landfi ll is considered19 the re-
sponsibility of the Romanian authorities. One wonders whether this is an
appropriate way of enforcing EU environmental law when compliance is
still not ensured more than ten years after the relevant date.
It is well known that disadvantaged groups of the population some-
times settle close to landfi lls, waste incinerators, fl ood-risk areas or close
to dangerous industrial installations, where prices for dwellings are low-
er. Consequently, one could expect the Commission to pay particular
attention to ensure that people do not live in areas with a high risk of
fl oods, that an adequate d ista nce is kept to indust r ial installations which
handle dangerous substances, or that an environmental impact assess-
ment, for example on industrial and nuclear installations or mining ac-
tivities, ensures that the necessary distance is maintained between the
installation and residential areas. However, the Commission does not
orient its implementation policy in this regard. The report on the Floods
Directive does not mention people who live in high-risk areas;20 the re-
port on the directive concerning the prevention of accidents indicates
that Member States had not been asked to inform the Commission on the
distance between an installation and residential areas.21 And while the
Commission has sometimes taken court action when the environmental
impact assessment in a specifi c case had not been made,22 it has never
taken action when an assessment did not consider the appropriate dis-
tance between the project and residential areas. This is understandable,
because an environmental impact assessment must help to avoid signif-
icant negative effects of a project on protected natural habitats;23 but EU
17 See E Vincze and M Stoica, ‘The Suspension of Human Rights during Covid-19: To Roma
in Pata Rât They Have Been Suspended for a Very Long Time’ (2020, 27 April) LeftEast.
18 Such a procedure, on the initiative of the EU Commission, is possible under art 260(2)
TFEU.
19 This wording is chosen, because there is now consensus that EU waste law requires an
unauthorised landfi ll to be closed and to be cleaned up. See, for example, Case C-378/13
Commission v Greece ECLI:EU:C:2014:2405. In this author’s opinion, the ‘clean up’ of a
landfi ll also includes the establishing of adequate housing for the people who live on such
a landfi ll.
20 Commission, COM (2019) 95 and SWD (2019) 58 to 84.
21 Commission, COM (2017) 665; the report concerned the directive preceding Directive
2012/18 (n 13).
22 See, for example, Case C-141/14 Commission v Bulgaria ECLI:EU:C:2016:8; Case
C-261/18 Commission v Ireland ECLI:EU:C:2019:955.
23 Directive 92/43 on the conservation of natural habitats and of wild fauna and fl ora
[1992] OJ L206/7, art 6.

7
CYELP 16 [2020] 1-23
law does not explicitly require an impact assessment to avoid signifi cant
negative effects of a project on human beings. And permits, whether or
not preceded by an environmental impact assessment, are granted by
the Member States, not by the Commission.
Pleas for a more considerate and hence more intervening implemen-
tation policy of the Commission when an infrastructure or industrial
project is to be installed in the neighbourhood of residential areas there-
fore appear justifi ed. This would include the Commission, whether on its
own initiative or following a complaint, making a fact-fi nding visit to the
location in question. Such fact-fi nding visits are under the competence of
the Commission and have been made, in the past, to protect animal spe-
cies or protected natural habitats.24 If the EEB report on Roma is ta ken as
an example25 and the facts mentioned there are taken to be correct, such
fact-fi nding visits and possible subsequent legal action by the Commis-
sion would be necessary for: Vel’ka Ida and Krompachy in Slovakia, where
Roma people were forced to settle close to industrial plants which appear
to fall under Directive 2012/18; Fakulteta, a suburb of Sofi a (Bulgaria),
where people were forced to live on or close to an (authorised or non-au-
thorised) landfi ll;26 Asparuhova (Varna, Bulgaria), where people live in a
fl ood-risk area;27 and Turda and Trepca (Romania), where people again
are forced to live on or very close to landfi lls or contaminated sites.28
These examples, taken from one single publication, illustrate the
problem: the Commission has repeatedly pleaded for an active policy to
protect Roma people.29 However, the devil of environmental and human
health protection is in the detail: unless the Commission is prepared to
use its existing means to fi nd out about the reality and enforce EU en-
vironmental law also in specifi c, individual cases − as it does to protect
biodiversity − the big words of general proclamations will not change
much of the reality. This reasoning does not overlook the fact that civil
society in Member States has also neglected and continues to neglect its
role: it does not bring cases of bad application to the knowledge of the
Commission, and does not make them transparent. A good example is
that of the European Roma Rights Centre (ERRC). The ERRC concen-
trates on human rights infringements of Roma and pursues numerous
24 See Case C-103/00 Commission v Greece ECLI:EU:C:2002:60, para 8; Case C-504/14
Commission v Greece ECLI:EU:C:2016:847, para 15. In both cases, the protection of the sea
turtle caretta was at stake.
25 EEB (n 16) 24.
26 ibid, 22.
27 ibid.
28 ibid, 24.
29 See the references in n 7.

8 Ludwig Krämer: Environmental Justice and European Union Law
actions before the European Court of Human Rights, frequently also as
third-party intervenor. However, it apparently does not consider tak-
ing the European Commission at its word to ensure Roma integration
within the EU and its obligation to enforce EU environmental legislation
also with regard to EU Roma citizens. Numerous facts denounced by the
ERRC also constitute breaches of EU (environmental) law, in particular
complaints concerning access to water, sanitation and electricity or the
obligation to live close to a waste landfi ll; yet, such facts are not even
known by the EU Commission, which does not have environmental in-
spectors of its own.
The legal problem is different when the infrastructure or the pollut-
ing industrial installations are in place and subsequently people settle
in the neighbourhood because the price of dwellings or the land is lower
than elsewhere. In such a case, the Commission − provided it learns of
the local problems − might, under Directive 2012/1830 or the other pieces
of legislation mentioned, invite the Member State in question to respect
the necessary safety distance between the polluting installation and the
(new) residential dwellings and, in the last instance, enforce this require-
ment. Apart from that, though, competence for acting lies entirely with
the Member State in question, which would have to avoid such a close
proximity of residents and the polluting activity. The EU Commission
has practically no possibility to intervene.
Overall, the environmental and human rights problems linked to
the location of polluting projects and the socially disadvantaged popula-
tion have not yet raised adequate concern in the EU, either from the EU
institutions or from academic researchers, NGOs or other parts of civil
society − including the concerned groups of the population themselves.
There is no doubt that city districts such as Paris-Neuilly, Bruxelles-Uc-
cle, Hamburg-Blankenese or Zagreb-Jarun, which do not host polluting
industries or infrastructures, are found in practically every European
urban agglomeration, and that, in contrast, districts of the less privi-
leged parts of the population host more of such environmentally damag-
ing installations and infrastructures in concentrations that truly affect
the quality of life.
2.2 Access to water and to waste water systems
Directive 98/83 deals with the public supply of drinking water.31 It
obliged public authorities to supply drinking water of quality, the de-
tailed requirements of which were laid down in the directive. Member
30 Directive 2012/18 (n 13).
31 Directive 98/83 on the quality of water for human consumption [1998] OJ L330/32.

9
CYELP 16 [2020] 1-23
States were allowed to exempt from the quality requirements of the water
small supplies of less than 10m³ water per day or water serving fewer
than 50 persons. The directive was silent on the question whether indi-
vidual persons had the right of access to drinking water that complied
with the requirements of the directive. This was never tested in court,
but a large majority of authorities at EU and Member State level were of
the opinion that such a right did not exist.
In 2018, the Commission proposed a review of Directive 98/83.32 It
suggested a number of amendments and proposed that Member States
should take ‘a ll measures necessa r y to improve access for all’ to drink i ng
water. While the European Parliament33 and the Committee of the Re-
gions34 more or less ag reed to that proposa l, the European Economic a nd
Social Committee requested the unrestricted right of access to drinking
water.35 The Council found political agreement on a text which provided
that Member States ‘shall take the necessary measures to improve or
maintain access to water intended for human consumption to all, in
particular for vulnerable and marginalised groups’.36
The directive is likely to be adopted in 2020, but without explicitly
giving individual citizens the right of access to drinking water. Several
Member States, such as Sweden and the Netherlands, argued that ac-
cess to drinking water was under the competence of the Member States,
a position which is diffi cult to reconcile with the concept that access to
water is a fundamental right. At the end of the day, it will be up to the
CJEU to decide if there is a human right of access to drinking water un-
der the reformulated Drinking Water Directive. In my opinion, there is
such a right at least in those cases where public authorities have incited
or urged persons to settle in places where no public drinking water sup-
ply is available or where they tolerate the living of people in areas without
access to drinking water for a signifi cant time.37 It is certain, though,
that any right of access to drinking water will only be obtained by court
action − that of the CJEU and the European Court of Human Rights.
As regards waste water, Directive 91/271 required all agglomera-
tions with more than 2,000 people to be equipped with systems for the
32 Commission COM (2017) 753 of 1 February 2018.
33 European Parliament, Resolution of 28 March 2019, document C8-0019/2018-
2017/0332.
34 Committee of the Regions [2018] OJ C361/46.
35 European Economic and Social Committee [2018] OJ C 367/107.
36 Council, Document 6060/1/20, Rev 1 of 24 February 2020, art 16.
37 Following the EEB Report (n 16) 22-24, these criteria would give the right of access to
drinking water to people living in the Roma settlements of Sajkoza (Hungary), Prasnik (Slo-
vakia), Plovdiv-Stolipinovo (Bulgaria), Sofi a-Fakulteta (Bulgaria) and Constanta (Romania).

10 Ludwig Krämer: Environmental Justice and European Union Law
collection of waste water and for waste water treatment.38 No exception
was made as regards the composition of the affected population, includ-
ing the question whether people have identity cards, passports, work per-
mits or other documentation. When the costs for installing waste water
collection and treatment are considered to be too high, a solution which
ensures an equivalent result must be adopted by the Member States.
The directive provided that all agglomerations with more than 2,000
people should comply with its requirements by 2005; some countries
which adhered afterwards had obtained specifi c transposition delays,
which have, in the meantime, all elapsed. As Member States were slow in
implementing the directive, the Commission brought numerous actions
against them before the CJEU, under Article 258 and 260 TFEU.39 Apart
from one case against Cyprus,40 no case has ever been brought against
any of the Member States which acceded to the EU since 2004.
Compliance with this directive requires that the Roma settlement of
Sofi a-Stolipinovo (Bulgaria) where, according to the EEB report mentioned
above, some 60,000 Roma people live, be equipped with drainage and a
waste-water treatment system. So far, it has not been tested with this di-
rective whether individual persons can rely on it before public authorities
and the courts, also in the absence of national legislation which gives
them such a right. In my opinion, individual persons or groups of persons
in the whole of the EU are entitled to claim in court that they have the
right to be connected to drainage and waste-water treatment systems.41
2.3 Waste issues
The collection of municipal waste is not explicitly regulated by EU
legislation, but is the responsibility of Member States. EU law only im-
poses the separate collection of certain materials − paper, metal, plastic
38 Directive 91/271 concerning urban waste water treatment [1991] OJ L135/40.
39 If my counting is correct, there were overall 51 actions, among them against Greece (9
actions), Spain (7), Portugal (6), and Italy (6). The cases do not allow any conclusion as to
the question whether in poor or otherwise disadvantaged agglomerations the installation of
waste water treatment systems was more frequently delayed than in other agglomerations.
40 Case C-248/19 Commission v Cyprus ECLI:EU:C:2020:171.
41 This ‘direct effect-doctrine’ was developed by the CJEU. It allows private persons to rely
against public authorities on a provision of an EU directive, which is unconditional and
suffi ciently precise, even in cases where the national legislation had not or not correct-
ly transposed that provision into national law. See in particular Case C-194/18 Wasser-
leitungsverband ECLI:EU:C:2019:824 on the direct effect of Directive 91/676 concerning
water pollution from nitrates [1991] OJ L375/1. In Case C-395/13 Commission v Belgium
ECLI:EU:C:2014:347, para 31, the CJEU declared that Directive 91/271 contained a clear
and unequivocal obligation for the Member States to reach a certain result, which points
to direct effect.

11
CYELP 16 [2020] 1-23
and glass, under specifi c waste stream directives − of packaging mate-
rial, batteries and electrical and electronic equipment. It also provides
that Member States should reach a rate of recyclable municipal waste42
of 50 per cent by 2020.43 This obligation implies some sort of waste col-
lection, though it appears doubtful that a Member State could be found
in breach of its obligations when it does not collect municipal waste in a
specifi c district or area of a municipality. As regards the separate collec-
tion of waste materials, no exception is made in the directive for certain
municipalities or parts thereof; whether the people living in a settlement
belong to an ethical minority or a ‘vulnerable or marginalised’ (socially
disadvantaged) group, whether they have valid documentation or not,
is irrelevant, as the objective of the obligation for separate collection is
the protection of the environment. Individual citizens may thus use EU
waste law and oblige municipalities to instal a system of separate collec-
tion of waste streams.
The Directive on the landfi ll of waste44 clarifi ed that the existence
of an unauthorised landfi ll constitutes a breach of EU environmental
law; such landfi lls must be closed and be cleaned up. There are several
court judgments in this regard, initiated by the EU Commission, which
sometimes became active also concerning the existence of a single un-
authorised landfi ll.45 The Commission would thus have the possibility to
take action against Member States where unauthorised landfi lls exist,
in particular when people live on or close to such landfi lls, as this also
increases the risk for human health; the observations made above con-
cerning fact-fi nding missions by the Commission would be particularly
appropriate in such cases. Until now, though, no such action by the
Commission has reached the CJEU or become known otherwise.
Following a number of accidents, the EU adopted a Directive on
waste from extractive industries.46 This directive did not contain specifi c
provisions on the distance of waste facilities from residential areas. It
requested the use of the best available techniques for the management
of the extracted waste, but implicitly also authorised the technique of
using tailing ponds,47 where extracted waste is stored under water and
42 Directive 2008/98 on waste [2008] OJ L312/3. The directive does not use the term ‘mu-
nicipal waste’, but refers to ‘household waste’. See Article 11 and Recital 41.
43 ibid, art 11.
44 Directive 1999/31 (n 14).
45 Case C-323/13 Commission v Italy ECLI:EU:C:2014:2290; Case C-140/14 Commission v
Slovenia ECLI:EU:C:2015:501; Case C-331/11 Commission v Slovakia ECLI:EU:C:2013:271.
46 Directive 2006/21 on the management of waste from extractive industries [2006] OJ
L102/15.
47 For a defi nition of tailing ponds, see ibid, art 3(9) and (12). Tailing ponds are mentioned
in Recital 24, Article 13 and Annex III of Directive 2006/21.

12 Ludwig Krämer: Environmental Justice and European Union Law
where this pond is surrounded by a protective dam. In 2010, a tailing
pond from the Ajka aluminia plant close to Kolontár (Hungary), which
contained liquid waste from the plant’s activities, broke and a wave of
sludge poured into the environment, killing ten and injuring some 150
people and causing considerable environmental damage. Though tailing
ponds are thus a possible technique under EU law, several EU Member
States − for example the Netherlands and Germany − no longer allow this
technique, because they consider that the risk, including the long-term
risk, of the breaking of a dam is too high. It is clear that the risk for the
population living next to an industrial installation which extracts min-
erals (the mining, aluminium, copper, gold industries, etc) is greater in
Member States which accept tailing ponds as a technique. The majority
of EU Member States are not yet prepared to renounce this technique.
2.4 Air pollution
Air emissions from large industrial installations are regulated by
Directive 2010/75,48 which provides that installations which are covered
by the directive shall use the best available technique. Expert groups
determine for each industrial sector what constitutes the best available
technique. Their conclusions are taken over by the EU Commission,
which determines by binding legislation what the best available tech-
nique for each industrial sector is. National authorities, which are com-
petent to grant or renew permits to the different installations, then base
the permit conditions on such best available techniques.
Directive 2010/75 thus allows the specifi c permit conditions to be
different from one installation to another, even if it is of the same type,
and from one Member State to another, according to different economic
and social considerations, the proximity of the installation to residential
areas, the size of the installation, the quantities of emissions, and the
proximity of other polluting installations or other sources. It therefore
gives a very large amount of discretion to the authorities of the Member
States. The directive also provides for extensive public participation pos-
sibilities during the permit granting or permit renewal procedure.
Directive 2010/75 only covers large industrial installations which
are listed in an annex to the directive. For all other installations, the
Member States are responsible for granting permits, deciding on the lo-
cation of the installations, limiting their polluting and noise emissions,
their discharges into waters and their land use. Air emissions from pri-
48 Directive 2010/75 on industrial emissions (integrated pollution prevention and control)
[2010] OJ L334/17.

13
CYELP 16 [2020] 1-23
vate households and public buildings come under the competence of EU
Member States and are not regulated by EU measures.
Traffi c-related air emissions are subject to uniform EU measures49
in order to ensure the free circulation of cars and trucks, one of the es-
sential elements of the internal EU market. However, these EU uniform
emission limits do not prevent Member States from leading an active air
pollution policy. They might limit the traffi c in urban agglomerations,
provide for speed limitations, put into reality the principle that the con-
struction of more roads increases traffi c, create green spaces, pedestrian
areas, bypass lanes for transitional traffi c, bicycle lanes, and take other
measures to protect residential areas − including those of economically
and socially disadvantaged people − from air pollution or noise. The poli-
cies of some cities in the EU − Copenhagen, Amsterdam, Delft, Freiburg,
Münster, Montpellier, etc − are examples of active urban policies to fi ght
air pollution and other environmental impairments. Again, the EU has
no possibility to intervene in such urban policies of agglomerations.
Directive 2008/50 established levels of concentration of several pol-
lutants − sulphur dioxide, nitrogen dioxide and oxides of nitrogen, par-
ticulate matter, benzene, carbon monoxide and tropospheric ozone − in
the ambient air, which are not to be exceeded from 2010, and for PM2,5
from 2015.50 Member States are obliged to fi x sampling points which
have to be established where concentrations are thought to be highest.51
Individual persons have the right to participate in the decisions where
such sampling points are to be established.52
PetriÊ53 sees a form of environmental (in)justice in the fact that air
pollution is worse in the Member States of Central and Eastern Europe
as well as in Southeast Europe than in core EU Member States. This
assessment is not shared here. Supposing that PetriÊ’s factual statement
is correct and air quality is really worse in those parts of the EU, the
conclusion from different levels of air pollution to environmental injus-
tice is not convincing. EU legislation on air pollution is the same for all
Member States. The kind of measures that are then taken to comply with
the legal requirements and even go beyond them54 depends on the policy
decisions of each Member State. These may include measures on town
49 Directive 2007/46 [2007] OJ L263/1.
50 Directive 2008/50 on ambient air quality and cleaner air for Europe [2008] OJ L152/1.
51 ibid, art 7 and annex III.
52 Case C-733/17 Craeynest ECLI:EU:C:2019:533.
53 PetriÊ (n 6) 234ff.
54 Directive 2008/50 is based on Article 192 TFEU and thus allows Member States to
maintain or introduce more stringent environment protection measures. See Article 193
TFEU.

14 Ludwig Krämer: Environmental Justice and European Union Law
and country planning, the planning and lining of motorways and oth-
er roads, traffi c-related measures, instruments to limit the use of fossil
fuels, the planning of green areas, the promotion of pedestrian areas,
bicycle lanes, and numerous other measures. It is not possible to con-
clude from differences in the degree of environmental or human health
protection within the Member States on cases of environmental injustice
− unless the term is used as being equivalent to a statement such as:
‘Inequalities between Member States are a form of injustice’, which is
not helpful and, in any case, lies outside the scope of examination of the
present contribution.
The CJEU had the opportunity to examine, between 2017 and 2020,
the air pollution measures in three Eastern Member States, namely Bul-
garia, Poland and Romania.55 It found in all three cases a systematic and
continuous exceedance of the limit values of Directive 2008/50 and did
not accept the argument that people in Bulgaria were poorer than people
in other Member States and had to heat their homes with wood or coal,56
or the ‘precarious nature’ of the Polish population.57
2.5 Greenhouse gas emissions
EU measures to fi ght climate change aim in particular at the re-
duction of greenhouse gas emissions. The present legislation has the
objective of reaching a 40% reduction of such emissions by 2030 com-
pared to the emissions of 1990. A form of effort sharing among Member
States, based mainly on the Gross Domestic Product (GDP) of each Mem-
ber State, attempted to balance the different socio-economic situations.58
The legislation was accompanied by a very signifi cant number of legisla-
tive acts which dealt with energy consumption, the substitution of fossil
fuels, and greater energy effi ciency. As the relevant legislation took as a
level of comparison the Member State, the question whether some Mem-
ber States had to carry a greater burden than others will not be exam-
ined here, since this contribution examines differences in the treatment
of specifi c groups of the population.59 It is clear, though, that a Member
State, which in the past relied heavily on fossil fuels as a source of ener-
55 Case C-488/15 Commission v Bulgaria ECLI:EU:C:2017:267; Case C-336/16 Commission
v Poland ECLI:EU:C:2018:94; Case C-638/18 Commission v Romania ECLI:EU:C:2020:334.
56 Commission v Bulgaria (n 55) para 64.
57 Commission v Poland (n 55) para 89. In none of the three cases was there any differen-
tiation made by the Member State concerned as to ‘rich’ and less well-off regions or areas.
58 Regulation 2018/842 on binding annual greenhouse gas emission reductions by Mem-
ber States from 2021 to 2030 [2018] OJ L156/26.
59 However, see also L Krämer, EU Environmental Law (8th edn, Sweet and Maxwell 2015)
337ff, which detailed the 2020 greenhouse gas emissions per capita of the EU Member
States.

15
CYELP 16 [2020] 1-23
gy, will have to make greater efforts to reduce greenhouse gas emissions
than a Member State which has relied more on renewable sources of
energy or on nuclear energy.
2.6 Access to environmental information
The Aarhus Convention on access to information, public participa-
tion in decision-making and access to justice in environmental matters
was ratifi ed by the EU and is thus part of EU law.60 A directive on access
to environmental information imposed the Convention’s information ob-
ligations on Member States and went partly beyond the Convention’s
requirements.61 As regards access to environmental information held by
EU institutions, two EU regulations give information rights to citizens
against EU institutions and bodies.62
Neither Directive 2003/4 nor the two regulations differentiate in any
way between different groups of the population. The right of access to
environmental information is the same for everyone. In practice, though,
there are differences. First, citizens in the different Member States are
differently interested in environmental information. Anglo-Saxon citi-
zens have shown, in the past, the greatest intellectual curiosity in the
EU by placing requests for access to information, probably because they
are educated in the conviction that the more open the discussions and
decision-making procedures are, the better a democratic society fares.
These considerations of an open society, which go back to the Austri-
an-British philosopher Karl Popper,63 are differently spread in the EU
Member States and there are, even in the 21st century, Member States
where the public authorities believe that as little information as possible
should be disclosed to the public.
This approach is also refl ected in the effective application of Article
4 of Regulation 1367/2006 − which is the same as Article 7 of Directive
2003/4 with regard to the public authorities of Member States − that
public authorities should proceed to an ‘active and systematic’ dissem-
ination of environmental information. All public authorities, including
municipalities, agencies, regional bodies, police authorities and courts,
are thus under the continuous obligation to make environmental in-
60 Decision 2005/370 [2005] OJ L124/1.
61 Directive 2003/4 on public access to environmental information [2003] OJ L41/26.
62 Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on
access to information, public participation in decision-making and access to justice in en-
vironmental matters to Community institutions and bodies [2006] OJ L264/13; Regulation
1049/2001 on public access to European Parliament, Council and Commission documents
[2001] OJ L145/43.
63 K Popper, The Open Society and Its Enemies (Routledge 1943).

16 Ludwig Krämer: Environmental Justice and European Union Law
formation, of which they dispose, available to citizens; in the age of the
internet, this is no longer diffi cult. Such information concerns, for exam-
ple, reports on inspections, emissions from industrial installations, the
number of households without access to clean tap water, sanitation, or
heating, the results of water and air quality in the different districts of
a municipality, noise levels, actions which the police have taken to pre-
vent environmental crime and their results, and large amounts of other
information.
It is clear that within the EU, all Member States − perhaps with the
exception of Sweden − are far from this state of affairs. In general, pub-
lic authorities at local or national level still believe that knowledge gives
power, and that sharing information means sharing their power. They do
not see the democratic element of transparency, and certainly do not fol-
low either the letter or the spirit of Recital 17 of the Aarhus Convention,
according to which ‘public authorities hold environmental information
in the public interest’, thus not in the interest of the public authorities.
These more general comments on access to environmental infor-
mation have a strong impact on the question of environmental justice.
Transparency of data and of information can reveal where individuals or
groups of disadvantaged or marginalised people are treated worse than
other groups of the population, where pollution is greater in some parts
of an agglomeration than in others, where the measures taken are inef-
fective, or where otherwise cases of environmental injustice occur.
An example of this kind is the initiative of Ms Nikolova, a resident of
the city of Dupnitsa (Bulgaria), who lived in a district that was inhabited
mainly by Roma people. Ms Nikolova complained that the responsible
electricity company had fi xed her electricity metre at a height of 6 to 7
metres, making it thus impossible for her to monitor her electricity con-
sumption and check whether she had to pay too much for her consump-
tion of electricity. She indicated that in districts of the city where the
majority of inhabitants were not Roma people, the metres were fi xed at a
height of about 1.70 m. The CJEU found that such a practice constituted
a practice of discrimination for ethnic reasons.64 The decisive point here
is that Ms Nikolova had the courage to denounce the practice in question
as discriminating; although apparently that practice had been used for
a long time in Dupnitsa, nobody else was bold enough to question it or
to persist in bringing it to an end. In the same way, the practice of the
City of Houston (USA) to place landfi lls in or close to black districts of
the city was denounced and progressively stopped through the initiative
64 Case C-83/14 Nikolova ECLI:EU:C:2015:480.

17
CYELP 16 [2020] 1-23
of an individual person, R Bullard, who made this practice public.65 As
regards EU law, there are numerous examples where requests for access
to (environmental) information made by individuals have led to court
judgments, resulting in a change in the public authority’s readiness to
disclose information.66
It is, of course, not to be overlooked that numerous public authori-
ties at local, regional, national and EU level prefer not to disclose envi-
ronmental information and not to answer requests, hoping that appli-
cants will be afraid to seek judicial decisions. However, such practice is
not the consequence of EU legislation or the Aarhus Convention, but is
in contradiction with existing law.
2.7 Public participation in environmental decision-making
The second right established by the Aarhus Convention and elab-
orated in more detail by EU law is the participation of the public in
environmental decision-making procedures. EU environmental law con-
tains such a right against public authorities which decide on projects67
or plans and programmes68 − though not for authorisations concerning
cars, chemicals, pesticides or biocides. Some details are laid down in
the different EU legal acts which refer to such a right of the ‘public con-
cerned’, leaving the specifi cation of who is concerned in a given case to
the competent national authorities.69
In practice, many public authorities, including the EU Commission,
pay lip service to the requirement to make the population concerned
participate in the decision-making process, and the CJEU has had to
decide in numerous cases of this kind.70 The practice of the authorities
65 Bullard (n 1).
66 Case C-321/96 Mecklenburg ECLI:EU:C:1998:300; Case C-1186/04 Housieaux
ECLI:EU:C:2005:248; Case C-39/05P Sweden and Turco v Council ECLI:EU:C:2008:374;
Case T-84/03 Turco v Council ECLI:EU:T:2004:339; Case T-402/12 Schlyter v Commission
ECLI:EU:T:2015:209; Case T-329/17 Hautala v EFSA ECLI:EU:T:2019:142.
67 Directive 2003/35 [2003] OJ L156/17 and scattered in numerous other directives. See,
for example, Directive 2001/92 (n 11) art 6; Directive 2010/75 (n 48) art 24; and Directive
2006/21 (n 46) art 8. As the EU institutions do not authorise projects, there is no legislation
on projects concerning them.
68 Directive 2001/42 on the assessment of certain plans and programmes on the environ-
ment [2001] OJ L197/17; Regulation 1367/2006 (n 62) art 9.
69 The population who lives in a perimeter of about one kilometre of a waste incinerator
might be considered to be ‘concerned’; in contrast, the population concerned by a motorway
of 100 km in length might be the population living within some 1500 metres of both sides of
the motorway. The competent authorities must necessarily have some amount of discretion
to decide who is concerned.
70 See Case C-399/14 Waldschlösschen ECLI:EU:C:2016:10; Case C-290/15 D’Oultremont
ECLI:EU:C:2016:816; Case C-671/16 Inter-Environnement Bruxelles ECLI:EU:C:2018:403;

18 Ludwig Krämer: Environmental Justice and European Union Law
which normally do not even differentiate between ‘consultation’ and ‘par-
ticipation’ cannot be retraced here in detail.
71 What is essential is that
no differentiation is made in EU legislation between different parts of the
population according to their ethnic or social status.
2.8 Access to justice
The third right granted by the Aarhus Convention, the right of ac-
cess to justice, will not be discussed in detail, as the legal situation is
relatively clear: access to EU courts is regulated by Article 263(4) TFEU.
The provision is very restrictively interpreted by the CJEU, which saw no
reason to be less restrictive because of the Aarhus Convention.72 As re-
gards access to the national courts, there is no general EU legislation, so
that the matter is regulated by the provisions of the different EU Member
States. For the purposes of this contribution, it is again to be underlined
that EU law does not differentiate between groups of the population,
their ethnic or social status, or similar criteria of this kind.
3 Environmental justice: three paths ahead
This short overview of EU environmental legislation clarifi es that
the intentional or unintentional placing of polluting installations or in-
frastructures in socially disadvantaged, marginalised or ethnic minority
groups does not repose on EU environmental law provisions. As EU en-
vironmental law explicitly provides that Member States may maintain or
introduce provisions which give greater protection to citizens than the
EU provisions,73 it is diffi cult to blame EU environmental legislation of
environmental injustice.
Case C-329/17 Prenninger ECLI:EU:C:2018:640; Case C-305/18 Verdi Ambiente
ECLI:EU:C:2019:384; Case C-280/18 Flausch ECLI:EU:C:2019:928.
71 See, for example, the contributions on participation rights in Spain (Bolano Pineiro and
Lasagabaster 143), the Arctic region (Poto 159), Poland and Ukraine (Rachynska 171; So-
bieray 193) and the EU (Krämer 121) in J Jendroska and M Bar (eds), Procedural Environ-
mental Rights: Principle X in Theory and Practice (Intersentia 2017).
72 The CJEU argues that broader access to the EU courts would require an amendment
of the TFEU and that the Aarhus Convention does not prevail over the TFEU which is EU
primary law. However, according to Article 216(2) TFEU, the Aarhus Convention, which
was ratifi ed by the EU, binds all the EU institutions, thus also the CJEU. Nothing would
therefore prevent the CJEU from amending its restrictive interpretation of Article 263(4)
TFEU and grant greater access to the EU courts in environmental matters − should it have
the political will to do so.
73 Article 193 TFEU: ‘The protective measures adopted pursuant to Article 192 shall not
prevent any Member State from maintaining or introducing more stringent protective mea-
sures. Such measures must be compatible with the Treaties. They shall be notifi ed to the
Commission’.

19
CYELP 16 [2020] 1-23
Rather, the core of the problem of environmental justice, as defi ned
in the introduction, lies in the application of environmental law, the big-
gest problem which (national, EU or international) environmental law
faces. The application of EU environmental law is fi rst of all under the
competence of the EU Member States.74 This includes the location of in-
stallations or infrastructures, town and country planning, the limitation
of air, water and soil pollution and the monitoring of the polluting activ-
ities of traffi c, industry or agriculture.
For historic, economic, political and other reasons, EU Member
States have a very different approach to the protection of the environ-
ment. While environmental questions rank high on the political agenda,
for example in Sweden, Denmark, the Netherlands or Germany, they
play a much less prominent role in countries such as Spain, Slovakia,
Cyprus or Bulgaria. The presence of environmental political parties, the
interest of communication media, the education system which includes
environmental topics, specialised agencies and laboratories which deal
with environmental research, data collection and publication, the prac-
tical application of fi ndings, and numerous other aspects contribute to
the different relevance of the environment in different Member States.
The rule of the law and its perception by the population must not be for-
gotten. A proverb such as ‘Fatto la legge, si trova l’inganno’ (once a law is
made, one fi nds a way to bypass it), which exists in Italy and in a similar
form in Spain, would not have the status of a proverb in Denmark, Swe-
den or Luxemburg: general respect of the law and its enforcement by the
public authorities is simply different in different Member States. Other
aspects of a similar kind are the transparency of decision-making, the
presence or absence of corruption, attempts to follow the lines of good
governance, and the deliberate attempt to give a voice to the environment
by strengthening environmental organisations, by establishing an envi-
ronmental ministry and equipping it with powers also to impose envi-
ronmental aspects in energy, transport, agricultural, industry or other
policy questions.
All these puzzle stones lead to the result that EU environmental law
is differently applied in different EU Member States. The concentration
of polluting installations or infrastructures in specifi c areas of a coun-
try or region might make sense because the area may be less densely
populated, or it might for other reasons offer itself to host such projects
(because of its geography, the wind direction, its proximity to waterways,
74 See Article 19(1) TEU: ‘Member States shall provide remedies suffi cient to ensure ef-
fective legal protection in the fi elds covered by Union law’. Article 192(4) TFEU: ‘Without
prejudice to certain measures adopted by the Union, the Member States shall fi nance and
implement the environment policy’.

20 Ludwig Krämer: Environmental Justice and European Union Law
for example). The price of land in such areas might be cheap and this
might in turn become attractive for low-income persons to settle in the
neighbourhood. Such actions and reactions might continue − and did
continue in the past, leading to the current situation in practically all
Member States that districts which are close to polluting sources are
inhabited by socially disadvantaged groups of the population.
In order to get out of such a vicious environmental circle, three pro-
cesses might be promoted. The fi rst is the possibility for EU Member
States − including cities, villages, provinces and regions − to redirect
their environmental strategy or policy. Environmental policy should no
longer be subordinated to economic considerations of grow th, but should
be oriented more towards the quality of life of citizens. Some paths were
already briefl y mentioned above. It is clear, though, that such a reori-
entation requires taking a deep breath, also since it goes against many
vested interests of the political and economic élites. For example, making
cities no longer perfect for car traffi c, but perfect for citizens (pedestri-
ans), reducing parking space and increasing green areas, changing the
heating system, introducing district heating, installing individual water
and electricity metres, or eliminating polluters from the city, etc, will
require a strategy, political determination to implement the strategy, and
an open, transparent policy which makes people understand the general
objectives. Environmental impairment is not an act of God, but can be
considerably reduced by the long and patient pursuit of more sustain-
able goals than in the past. There are also models for this among the EU
Member States and their regions, provinces and cities.
The second element of a strategy would be to improve environmen-
tal provisions, both by the EU and by the Member States. The EU has
already started by trying to reduce and even eliminate the landfi lling of
waste.75 While suffi cient contaminated sites within the EU continue to
exist − landfi lls, but also abandoned industrial installations and mil-
itary areas − some Member States (such as Denmark and the Nether-
lands) have developed policies and strategies to progressively clean up
such sites. Suffi cient fi nancial means are available to support these na-
tional or EU strategies.
Another element is reducing emissions from industrial installations.
It is shocking to fi nd that although climate change considerations are
now likely to lead to steel production installations considerably reducing
their greenhouse gas and other emissions by 2030, thanks to new tech-
niques,76 it was not possible for such techniques to be developed earlier
75 Directive 2018/850 amending directive 1999/31 [2018] OJ L150/100.
76 Commission, the European Green Deal, COM (2019) 640, 7.

21
CYELP 16 [2020] 1-23
in order to improve the health of the population living close by such steel
installations. In the same way, there are plans to reduce emissions from
waste incinerators, and one wonders why it required climate change dis-
cussions for such plans to be developed. Generally, neither the objective
of developing cleaner industrial techniques nor the requirement to en-
sure a certain distance between residential areas and polluting activities
were taken too seriously, either by the EU or by the majority of Member
States.77 The new policy objective of the EU Commission to reach, by
2030, zero emissions into air, water and soil,78 utopian as it is, will in any
case not be achieved without the strong political, economic and techni-
cal activity of the Member States. Yet, Member States are competent to
regulate most of the sources which emit polluting substances into the
air, water and soil; it requires political will to change the environmental
conditions for all the citizens. EU institutions cannot achieve this on
their own.
The third aspect concerns the better implementation, application
and enforcement of EU environmental law. To begin with, there is no
doubt that there is actually some form of discrimination of Roma pop-
ulations within the EU, and the EU Commission itself called for an im-
provement of the current situation.79 Other minorities, such as Turkish
people in Germany, Hungarians in Romania, or North African people in
France, also suffer forms of unequal treatment, which includes disad-
vantages in the application of environmental law provisions, though it is
not limited to this.80 However, this means that the Commission, which
ensures that the provisions of EU law are applied in the Member States
and are applied equally, takes care that the, theoretically uniform, EU
environmental law provisions are not in practice applied in a way that
discriminates minorities. When, for example, the Commission learns
from practices such as the fi xing of electricity metres in Roma districts
at a height that is different from that in other districts, or when it learns
that minorities in a n agglomeration live on or ver y close to a n authorised
or unauthorised landfi ll, it also has the obligation to make fact-fi nding
visits in order to establish the facts and start improving the situation.
Turning a blind eye to such situations with the argument that it is fi rst
of all up to the Member States to ensure that EU (environmental) law is
applied is not good enough, as the Commission itself has the legal obli-
77 An example is the location of the Portuguese airport at Lisbon, which lies in the city
centre, whereas the Swedish airport of Stockholm lies about 50 km outside the city centre.
This shows the impact of planning measures on environmental impairment.
78 Commission (n 76) 14.
79 See the references in n 7.
80 Such unequal treatment also concerns medical care, health insurance, treatment during
the Covid pandemic in 2020, etc.

22 Ludwig Krämer: Environmental Justice and European Union Law
gation to ‘ensure the application of the Treaties and of measures adopted
by the institutions pursuant to them’.81
In the same way, the Commission should be particularly attentive to
see whether the environmental impact assessments for mining and other
projects in the Sami region in Norther n Scandinav ia have really been cor-
rectly made, that all Member States actively and systematically dissem-
inate environmental information to their people, that data on water, air
and soil pollution are regularly made publicly available, that waste collec-
tion systems do not ‘forget’ to collect waste from ethnic or other minori-
ties, that a meaningful, transparent and open environmental complaint
system is set up at EU level, that local, regional or national plans and
programmes provide for the appropriate participation of citizens in the
decision-making process, that environmental infringement actions under
Article 258 TFEU are taken in the same way against big and small, rich
and poor Member States, and numerous other aspects; in other words,
the Commission should ensure that the application and enforcement of
EU environmental law does not lead to unequal treatment in practice.
These obser vat ions do not mean t hat Member States do not have op-
portunities to improve their enforcement and application practice. Mem-
ber States do have the possibility to inspect doubtful polluting activities,
consider aspects of unequal treatment of minorities and ensure that the
environment in their territory is adequately protected. A democracy, we
learn in school, shows itself in the way it treats its minorities. All public
authorities have the obligation to treat their citizens equally and to apply
EU and national environmental protection provisions in a fair, equitable
and proportionate way. And minorities need more protection than other
sections of the population. At present, the way in which Member States
make public account of the application and enforcement of the provi-
sions of (EU and national) environmental law is grossly inadequate. The
citizen in most Member States has almost no way of knowing how the
provisions to protect the environment are or are not enforced, applied
and respected. The requirement of ‘active and systematic’ dissemination
of environmental information is generally disregarded by Member States.
Directive 2003/4 also requires Member States to publish every four
years a report on the state of the environment in their country.82 This
obligation is not complied with by the majority of countries, and it is little
consolation that the Commission is also obliged to publish a report on
the state of the EU environment every four years, but does not do so.83
81 Article 17(1) TEU.
82 Directive 2003/4 (n 61) art 7(4).
83 Regulation 1367/2006 (n 62) art 4(4). EU reports on the state of the environment are
only published every fi ve years.

23
CYELP 16 [2020] 1-23
4 Concluding remark
All three aspects, jointly or severally, would require another envi-
ronmental policy, and probably even another general policy approach by
the EU Member States. Th is is due to the fact that just ice in modern soci-
ety primarily requires the elimination of privileges and inequalities. Rich
and poor persons or groups of persons have always existed in societies,
whether assembled around royal courts, around priest clans, econom-
ic bodies or political groupings.84 Justice in our society can only mean
that the inequalities between different groups of the population, be they
of a social, economic or environmental nature, are reduced or, ideal-
ly, eliminated. Environmental justice cannot be obtained without social
and economic justice. And the present contribution has limited itself to
looking at the situation within the EU, but did not consider economic,
social and environmental injustice at the global level, which would need
a contribution of its own.
Policy, Max Weber once formulated, is a strong and slow boring of
hard boards.85 Improving environmental justice and reducing cases of
injustice means that public authorities, but also private citizens, aca-
demics and journalists, producers, traders and intellectuals, who all
have responsibilities for this planet, actively work in each of the three
areas mentioned above, make better environmental rules, apply them
better, and ensure that the provisions meet everyone in the same way.
This work is licensed under the Creative Commons Attribution − Non-Commercial
− No Derivatives 4.0 International License.
Suggested citation: L Krämer, ‘Environmental Justice and European Union
Law’ (2020) 16 CYELP 1.
84 The statement by John Ball in the 14th century, ‘When Adam delved and Eve span, who
was then the gentleman?’ does not describe a societal reality.
85 M Weber, Politik als Beruf (Dunder & Humblot 1919).