Handbook of European Environmental and Climate Law E-Book

Patrick Thieffry

• Herausgeber: Bruylant
• Kategorie: Fachliteratur
• Serie: Collection droit de l'Union européenne - Manuels
• Sprache: Englisch
• Veröffentlichungsjahr: 2021

Seitenzahl: 800

Beschreibung

This Handbook of European Environment and Climate Law is the 2nd edition of the work previously titled Handbook of European Environment Law.

It is associated with the Traité de droit européen de l’environnement et du climat and the Manuel de droit européen de l’environnement et du climat, both in the French language and published in the same collection, and with which it shares a same structure. The Traité provides a more in-depth approach, with further historic, policy and caselaw considerations, and more complete references.

The introduction in the book’s title of the climate dimension, while it was already quite present in the previous edition, is testimony to its growing importance absent a dedicated EU policy and corresponding legislative basis.

Climate law is covered in its many occurrences along the work, its specificities noted, and their consequences recognized, especially with respect to the international background which brings about novel legal interventions, an upheaval of classical approaches, through the creation of a new governance for the implementation of the Paris Agreement and of the resulting EU legislation.

The recurring changes in the many and diverse environmental legislations are also of course presented in context, including in light of the growing importance of circular economy and the proposal of a European Green Deal.

The growing interference of fundamental rights is henceforth considered: Charter of Fundamental Rights of the Union, Convention for the Protection of Human Rights and Fundamental Freedoms, etc. More broadly, the development of environmental and climate disputes settlement is accounted for beyond the traditional recourse to the EU judges, in the national courts including through transnational private litigation, and in international arbitration.

Leseprobe

Previously published in the same serie:

1. Manuel de droit de l’environnement de l’Union européenne, 2e édition, Patrick Thieffry, 2017.

2. Régulation bancaire et financière européenne et internationale, 5e édition, Thierry Bonneau, 2020.

3. Droit fiscal de l’Union européenne, 2e édition, Alexandre Maitrot de la Motte, 2016.

4. Droit européen de la concurrence. Ententes et abus de position dominante, David Bosco et Catherine Prieto, 2013.

5. Manuel de droit européen du travail, Sophie Robin-Olivier, 2016.

6. Le droit de la fonction publique de l’Union européenne, Joëlle Pilorge-Vrancken, 2017.

7. Droit européen de la commande publique, 2e édition, Stéphane de La Rosa, 2020.

8. Droit européen de la protection sociale, Ismaël Omarjee, 2018.

9. Handbook of European Environmental Law, Patrick Thieffry, 2018.

10. Le droit douanier de l’Union européenne, Jean-Luc Albert, 2019.

11. Manuel de droit européen des assurances, Pauline Pailler, 2019.

12. Droit du marché unique numérique et intelligence artificielle, Céline Castets - Renard, 2020.

13. Histoire de la construction européenne, Geoffrey Grandjean, 2020.

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Foreword

This handbook proposes an introduction to EU Environment and Climate Law and it is thus primarily intended for students. Environment-specialized engineers and other technicians, who are in great need to apprehend the legal framework within which they operate, will also find relevant general indications in these pages. They may also prefer its French-language version, the Manuel de droit européen de l’environnement et du climat, the third edition of which is published simultaneously.

By contrast, in view of the many and extensive dimensions, in every respect, of this matter, a work of the size of this one cannot possibly provide a reliable rendition for research purposes, be it scientific research or operational studies. Legal practitioners and researchers will thus rather refer to the more extensive Traité de droit européen de l’environnement et du climat, also in the French language, the fourth edition of which was published in 2020, also in the series “Droit de l’Union Européenne” by Bruylant.

This handbook, the Manuel and the Traité complement each other all the more that they share the same structure, i.e., similar parts, chapters, and subdivisions. In other words, the topics summarily presented in this Handbook are detailed in the Traité, including with historic, policy and litigation perspectives where relevant and, above all, with more complete references allowing further consideration of the legal issues concerned.

The inclusion of the climate dimension in the work’s title, for the first time in this edition, is a result of the progressive evolution of the matter, the climate dimension having been present in each edition. Climate law is a major aspect of environmental law, as well as of all the other EU policies and actions under the integration principle, part of which is energy policy. Nonetheless, its specificities are notable, with the instauration of a new governance of the Energy Union, indispensable for the purpose of the implementation of the Paris Agreement on climate.

Other changes since the preceding edition are also notable. In addition to the iterative revisions of environmental and climate legislation, such as those warranted by the growing interest for circular economy or the next wave of legislation linked to the European Green Deal and its 2050 carbon neutrality ambition two new practice trends must be taken account of: the growing immixing of fundamental rights in environment and climate litigation, and the development environment and climate litigation.

Contents

FOREWORD

TABLE OF ABBREVIATIONS

INTRODUCTION

BOOK ONE Institutional framework of environment and climate law-

CHAPTER I. – SCOPE OF ENVIRONMENTAL AND CLIMATE LAW

CHAPTER II. – IMPLEMENTATION OF ENVIRONMENT AND CLIMATE LAW

CHAPTER III. – PRINCIPLES IN ENVIRONMENT AND CLIMATE LAW

BOOK TWO Environment and climate legislation

PART ONE Rules applicable to the natural environment areas

CHAPTER IV. – AIR AND ATMOSPHERE

CHAPTER V. – WATER

CHAPTER VI. – NATURAL HABITATS, FAUNA & FLORA

PART TWO Objects having an impact on the environment

CHAPTER VII. – WASTE

CHAPTER VIII. – NOISE PRODUCING EQUIPMENT AND ACTIVITIES

CHAPTER IX. – HAZARDOUS SUBSTANCES AND ORGANISMS

PART THREE Transversal measures

CHAPTER X. – THE SO-CALLED “INTEGRATED” MEASURES

CHAPTER XI. – PUBLIC INFORMATION AND PARTICIPATION

PART FOUR Economic and tax instruments

CHAPTER XII. – FORCED INTERNALISATION

CHAPTER XIII. – VOLUNTARY COMMITMENTS

CHAPTER XIV. – ENVIRONMENTAL LIABILITY

BOOK THREE Environment and climate integration in other legislation

PART I Non-sectorial rules

CHAPTER XV. – EUROPEAN INTERNAL MARKET

CHAPTER XVI. – COMPETITION RULES

PART II Sectorial legislation

CHAPTER XVII. – AGRICULTURAL LEGISLATION

CHAPTER XVIII. – TRANSPORT LEGISLATION

CHAPTER XIX. – ENERGY LEGISLATION

CHAPTER XX. – ACTION ON HUMAN HEALTH

Table of abbreviations

BAT

Best Available Techniques

BATNEEC

Best Available Techniques Not Entailing Excessive Costs

CAP

Common Agricultural Policy

CCS

Carbon Capture and Storage

CDM

Clean Development Mechanism

CERs

Certified Emission Reductions

CPHR

Convention for the Protection of Human Rights and Fundamental Freedom

ECHR

European Court for the protection of Human Rights and Fundamental Freedoms

EFSA

European Food Safety Authority

EIONET

Environment Information and Observation Network

EMAS

Eco-Management and Audit Scheme

EPER

European Pollutant Emission Register

EPR

Extended Producer Responsibility

ERUs

Emission Reduction Units

ETS

Emissions Trading System

EU

European Union

EUEB

European Union Eco-labelling Board

EUESB

European Union Energy Star Board

GHS

Globally Harmonized System

GMOs

Genetically Modified Organisms

IPP

Integrated Products Policy

JI

Joint Implementation

LULUCF

Land Use, Land Use Change and Forestry

NAP

National Allocation Plan

NFPs

National Focal Points

SAC

Special Ares of Conservation

SCI

Site of Community Importance

SGEI

Service of General Economic Interest

SIEF

Substance Information Exchange Forum

SPA

Special Protection Area

UNCLOS

United Nation Convention on the Law of the Sea

UNECE

United Nations Economic Commission for Europe

UNFCCC

United Nations Framework Convention on Climate Change

WFD

Water Framework Directive

Introduction

The problems pertaining to environmental and climate phenomena are often complex and quite specific. Varying from the local level (noise, waste) to a planetary dimension (climate change, and now the “ocean of plastics”), they are ever changing and frequently renewed (ozone layer depletion and then climate change, GMOs and then nanotechnologies, …. and perhaps even suspicion of biodiversity-linked pandemics), and sometimes hardly attributable to a given cause (fugitive emissions, orphan contaminated sites, plastics again, and of course climate change). Such specificities indirectly impact their legal apprehension, which itself is reactive, plural and very diversified.

Environment and climate law, which is to a large extent that of the relationships between environmental protection, climate change and economic development, thus underlying the concept of sustainable development, has an additional dimension in Western Europe: the creation of an integrated market.

Such dual finality of EU Environmental Law calls for a few series of introductory remarks, of an historical nature (§ 1), pertaining to procedural aspects (§ 2), on its quest for efficiency (§ 3), addressing recent questioning by the climate change problem (§ 4), and on the prospects of the European Green Deal (§ 5). Then will come the outline of this Handbook (§ 6).

§ 1. – A tortuous history

For the Treaty of Rome, market integration was the fundamental task, and environmental protection was far from such concerns. As it was signed on 25 March 1957, the Treaty of Rome did not include any provision on the environment or pollution, much less climate change, nor even these very words. The first step taken by European lawmakers in the environmental area nevertheless took place quite early as compared to similar developments at the international or national levels. Directive 67/548 of 27 June 1967, which organized for the first time at the European level the classification, packaging and labelling of dangerous substances1, and the reform of which has since then given rise to one of the most fiercely-fought legal battles of the early twenty first century (infra, Chapter IX), was generally identified as the first incursion of European law in the environmental area. Shortly thereafter, two Directives dealing with motor vehicles, respectively with respect to their sound emissions2 and to their air emissions3, were adopted in 1970. The legal bases of these initial legal measures were regarded as being at most better than nothing.4 In 1972, the year when the United Nations conference on the Human Environment gathered in Stockholm, the European Commission presented its first communication on the topic and the heads of States and governments of the UN members agreed on the principle of a Community policy.

In 1986, the Single European Act instituted a Community action in environmental matters, and Articles 130r, 130s and 130t of the EC Treaty became the institutional framework for a significant part of the environmental measures that were adopted thereafter. Such action, altogether aiming at a “high level of protection”, was to rely on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source, and that the polluter should pay (Article 130r(2) EEC).

In 1992, the European Union Treaty, also known as the Maastricht Treaty, promoted that action to the status of a full policy (Article 3(k) EEC) and reinforced it with the precautionary principle. The EEC Treaty then provided that the harmonious development of economic activities, one of the several components of the Community’s mission, had to be “balanced.” It was to come with a growth that would be “sustainable” and “respecting the environment” as well as a “high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States” (Article 2 EEC). Better, environmental protection requirements had to be “integrated into the definition and implementation of other community policies” (Article 130r(2) EEC). This was the first appearance of the “integration principle” in European law.

In 1997, with the Amsterdam Treaty, Articles 130r, s and t EEC became Articles 174, 175 and 176 EC but remained unchanged as to their contents. Article 2 EC then provided that the development of economic activities, which the Community was inter alia mandated to pursue, was to be not only harmonious and balanced, but also sustainable. An explicit reference was made to environmental protection5: another component of the Community’s mission consisted of promoting “a high level of protection and improvement of the quality of the environment.” The integration principle furthermore took a remarkable importance by being uplifted from Article 130r (2) to a new Article 6 EC.

Lastly, the Lisbon Treaty made limited changes to the environmental policy itself, even though some changes it brought to the general institutional framework of the European Union are likely to impact its implementation and its application:

the European Union Treaty henceforth provides that the Union “shall work for the sustainable development of Europe […] and a high level of protection and improvement of the quality of the environment” (Article 3(3) TEU);

the Charter of Fundamental Rights of the European Union is expressively recognized “the same legal value as the treaties” (Article 6(1) TEU)6, it is provided that the European Union shall accede to the European Convention on the Protection of Human Rights and Fundamental Freedoms (“ECHR”) and, in any event, fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States “shall constitute general principles of the Union’s law” (Article 6(3) TEU), so that those subjective rights which have been recognized to a significant extent in environmental matters are henceforth within the jurisdiction of the European Court of Justice;

national Parliaments now have the means to actively invoke the principles of subsidiarity and proportionality by issuing reasoned opinions stating why they consider that a projected piece of legislation does not comply with the principle of subsidiarity, in which case, and subject to certain triggers being met, a projected piece of EU legislation must be reassessed, subject to review by the Court of Justice7;

also worthwhile noting is the introduction of a potential occurrence of direct democracy in a popular initiative referendum (Article 11(4) TEU);

lastly, a few substantive additions are of some, albeit more or less remote, interest to environmental law: (i) the new Union’s policy on energy (Article 194 TFEU), (ii) a “support competence”, i.e., a “competence to carry out actions to support, coordinate or supplement the actions of the Member States”, exclusive of any approximation (see, Articles 2(5) and 6 TFEU), pertaining to their actions in risk prevention and response to natural or man-made disasters (Article 196 TFEU), or (iii) the normalization of police cooperation (Article 87 TFEU).

As to the Treaty on the functioning of the European Union, which succeeds to the EC Treaty, the changes made to environmental law were minimal:

Article 6 TEC on the integration principle became Article 11 TFEU;

welfare of animals requirements were included in Article 13 TFEU, and they must be taken into account in formulating an implementing the EU’s agriculture, fisheries, transport, internal market, research and technological development and space policies;

Article 95 TEC became Article 114 TFEU, without any substantive changes;

Articles 174, 175 and 176 TEC, the primary law institutional framework of the environmental policy, became Articles 191, 192 and 193 TFEU, albeit without being changed as to their substance with the only exception that its component consisting in “promoting measures at the international level to deal with regional or worldwide environmental problems” now include “in particular combating climate change” (Article 174(1) TFEU);

so that the most significant change brought to environmental law by the Lisbon Treaty may be outside the scope of the environmental policy from an institutional point of view: it comes along with the formal introduction at Article 194 TFEU of an energy policy relying upon an autonomous legal basis, and the striking intricacies of which with the environmental policy will be noted below.

§ 2. – A laborious implementation

The European Commission keeps stressing the significant “weaknesses” of the implementation of European environmental law which it explains, not without a good dose of diplomatic talent, by a series of problems pertaining to the complexity of environmental phenomena rather than to the Member States’ reluctance with respect to such legislation.

In a 2017 communication8, the Commission published an “Environmental Implementation Review” or “EIR”, according to which there remain significant challenges and deficiencies with waste management, nature and biodiversity, air quality, noise and water quality and management, i.e., issues involving most of the main natural environments. For example, while air quality improved across the EU over the last few decades, only five member states never exceed limit values and report a generally good air quality. Coordination between the several governance levels is not efficient; responsibilities are fragmented; and there remain impairments to access to justice, including excessive costs or restrictive conditions. More encouraging was another, simultaneous, communication, the “Second Report on the State of the Energy Union”9: The EU overall continued its progress towards achieving the 2020 climate and energy objectives: energy consumption decreased; greenhouse gas emissions were 22% below the 1990 level as early as 2015; and renewables reached 16% of gross final consumption. While, the GNP progressed by 50% between 1990 and 2015, CO2 emissions decreased by 22%.

In order to illustrate the diversity and the complexity of the issues involved, environmental, but institutional and regulatory also, which impede the effectiveness of environmental law in the European Union, it may be helpful to refer to a small sample of cases chosen for this purpose in view of the diversity of the legal bases involved at the legislative stage and of the Court process at the litigation stage.

a. The Novartis transgenic maize

The French Conseil d’Etat, having ordered a stay in the application of a regulation authorising the placing on the market of a genetically modified maize on the ground that a plea raised against it appeared to have “considerable force” and to be capable of justifying its annulment, referred preliminary questions to the Court of Justice with respect to the interpretation of Directive 90/220 of 23 April 1990, on the deliberate release into the environment of genetically modified organisms.10 The directive was based on Article 100 A EC (now Article 114 TFEU), being a measure pertaining to the establishment and the functioning of the internal market. The Court opined that the French authorities were under an obligation to issue the consent because a positive decision had been made at the European level, and that a Member State which obtains “new information regarding the risks of the product to human health or the environment” is under an obligation to immediately inform the Commission and the other Member States about this situation. That Member State’s only alternative is then to provisionally restrict or prohibit the use or the sale on its territory of such a product.11

A few years later, a consensus having not been found between the Member States with respect to GMOs, and since history has a propensity to repeat itself, the Court again found against France for a repeat action against GMOs. It had once more received a referral for a preliminary ruling from the Conseil d’Etat, when, at the end of 2007, yielding to the public opinion and the media, the government suspended the sale and use of genetically modified maize seed varieties MON 810, and then the planting of maize seed varieties derived therefrom.12

Even more remarkably, the General Court ended up declaring that the European Commission had failed to fulfil its obligations under the Directive by not submitting to the Council a proposal for a decision concerning the placing on the market of maize 1507 pursuant to an application that had been filed twelve years before, as it should have after the Member States were unable to reach the required majority to take a decision in this respect.13

b. The nitrates’ content of Suez Lyonnaise’s water

The second case likewise illustrates the importance of some environmental issues for the French public opinion which is particularly sensitive to nitrates not only in relation to the propagation of green algae but also because responsive measures impose a heavy burden on an agricultural sector which is traditionally very vocal in the defence of its interests. From an institutional point of view, this matter brings in full light the public authorities’ liability for their failure to implement environmental regulation.

Based on former Article 130s EEC (now Article 192 TFEU), Directive 91/676 of 12 December 1991, concerning the protection of water against pollution caused by nitrates from agricultural sources14, requires the Member States to designate as vulnerable zones all known areas of land which drain into waters that are, or could be, affected by pollution, and then to establish action programmes in respect of such designated vulnerable zones.

An administrative Court thus ordered the State to indemnify a water company which had itself been ordered by a civil Court to pay damages to the inhabitants of a Brittany city for having provided them with water of a quality below the Directive’s requirements. It ruled that the water company should not bear the financial consequences of such non-compliance because it was caused by the State’s infringement of EU law.15

The Court of Justice then declared that France had breached its obligations under the Directive by failing to take the appropriate steps to identify waters affected by pollution and, consequently, to designate the corresponding vulnerable zones.16

The French State was again held liable for the injuries caused to Brittany NGOs by the proliferation of green algae in the bays of St-Brieuc and Douarnenez by an administrative Court which found that the damage was caused “mostly by the non-application of livestock manures” as a result of the late transposition of Directive 91/676 and of various litigation matters pertaining thereto, in addition to other infringements of EU law.17 The appellate Court stressed that collective bargaining with agricultural unions that had taken place with the aim of establishing a subsidy system for the adaptation of farms to the legal requirements in question was a negligent failure of the public authorities in the application of environmental regulation to breeders.18

c. The “greening” of Helsinki’s public transportation

Other cases illustrate the outreach of environmental problems, such as when it questions well-established market practices.

The Court of Justice applied the integration principle in the context of the EU rules on public procurement holding that, when a contracting authority awards a contract to the tenderer which presented the most economically advantageous tender, it may take ecological criteria into consideration.19 In this case, the city of Helsinki, being the contracting authority, had adopted a system of points linked to a number of criteria, including inter alia nitrogen oxide emissions and external noise levels of the buses that would be used for the operation of public transportation routes. While it referred expressly to Article 6 EEC (now Article 11 TFEU), the Court interpreted public procurement in a way favourable to the environment. However, this should not have come as a surprise since the integration principle is first and foremost a legislative action principle (see, infra, Chapter III).

Public procurement rules were thereafter revised in such a way as to allow a compromise between market integration and the protection of the environment (see, infra, Chapter XV).

d. The Eco-Emballages waste management system’s logo and technical requirements

Market rules also contributed to environmental case law, such as when a preliminary referral was made to the Court of Justice on a national regulation according to which manufacturers and distributors of products must identify their packaging to the after-use disposal of which they contribute financially. The issue was whether such a requirement constitutes a technical regulation so as to be subject to prior notification to the Commission and/or a barrier to trade. The Court of Justice found that such a national provision would indeed constitute a technical regulation needing to be notified to the Commission if “in light of all the factual and legal evidence before the national Court”, that Court concluded that it “must be interpreted as imposing on producers and obligation to mark or label the packaging, although not specifying what sign must be affixed.”20

In the instant matter, the French Cour de Cassation ruled that the specific marking requirement was only imposed by the contracts entered into between the producers and the waste management system to which they transferred the responsibility to perform their legal duties, and that it was consequently not a technical requirement of the Member State as such subject to prior notification.21

e. Spilling from Texaco gas stations, the Erika tanker and the used water collectors

Yet another case shows the ability of European environmental law to question even the very concepts of domestic civil law, including and up to the frontiers of political and industrial games. The Court of Justice ruled that a petroleum undertaking could, under the appropriate circumstances, be considered to be the producer or the holder of hydrocarbons which were spilled unintentionally in the soil and groundwater of a service station and that that oil company must therefore be held liable for the costs of excavating and recovering such waste.22 The issue so referred to the Court was one of interpretation of Directive 75/442 of 15 July 1975, on waste23, which was then in force (infra, Chapter VII), and which provided that, “in accordance with the ’polluter pays’ principle”, the costs of disposing of waste must be borne by the holder of the waste, its previous holders or “the producer of the product from which the waste came.” Likewise, the soil contaminated by substances spilled accidentally could characterize as waste, irrespective of whether it was excavated or not, because the operator “discards” those substances, which is a primary characteristics of waste.

The Van de Walle case law was thereafter extended by the Court of Justice to the used waters of British water company Thames Water utilities, and then even to the hydrocarbons spilling from the torn-apart hull of the infamous Erika tanker after it sank and spoiled the beaches of Brittany. In a remarkable but questionable twist, European lawmakers then put an end to the development of that spectacular case law by removing soil, the underground and used waters from the scope of the general waste legislation (infra, Chapter VIII).

f. The diversion of the course of the upper waters of the river Acheloos to the river Pineios

The Greek authorities’ project of diverting the waters from a river to another one illustrates certain phenomena linked to the evolution of European environmental law practice, if not of its contents. Twenty years of litigation, five rulings by the Greek State council and the cancelling of multiple administrative decisions led to a reference to the Court of Justice with respect to no less than fourteen questions involving four of the most notorious environmental directives.24 Among many other and diverse questions which were addressed by the Court in this case, one reads that, as soon as in the course of the period allowed to Member States for the implementation of a major water policy Directive (infra, Chapter V), they must refrain from taking any measures liable to seriously compromise the attainment of the results prescribed by that Directive. Such would be the case of a diversion of waters which may have an adverse impact on the status of the body of water unless those modifications or alterations were made for reasons “of overriding public interest” or if the benefits to the environment and to society of achieving the Directive’s objective “are outweighed by the benefits of the new modifications or alteration to human health, to the maintenance of human safety or to sustainable development” e.g. if the river basin receiving the waters is incapable of meeting its needs in terms of drinking water, electricity production or irrigation from its own water resources (idem, para. 68).

As to the maintenance of biodiversity (infra, Chapter VI), the Court found in the same matter that it “may in certain cases require the maintenance, or indeed the encouragement, of human activities”, so that any compensatory measures “must be applied in light of the objective of sustainable development” were the conversion of a natural fluvial ecosystem into a largely man made fluvial ecosystem is considered.25 Furthermore, a national law which approves such a project on the basis of an environmental impact assessment which had served as the basis of an administrative decision adopted in compliance with public information and participation requirement (infra, Chapter V) may rely on information provided within the framework of the prior administrative procedure even though that administrative decision was ultimately cancelled.26

§ 3. – Looking for efficiency

Until the early 1990’s, European environmental law comprised measures pertaining to the various areas of the environment (air, water, fauna and flora) and to the things having an impact thereon (waste, noisy equipment, hazardous substances). It was setting forth parameters aimed at ensuring that quality targets were satisfied or limit emission values complied with, and even laying down some process standards for industrial activities. The most damaging human activities were prohibited, like the capture and sale of certain species of birds threatened of extinction, the operation of the noisiest airplanes, the use of or transactions involving ozone-depleting gas, whilst other activities were subject to prior authorisation, such as waste disposal or transactions involving GMOs.

The implementation and the application of this heterodox body of legislation were far from being ensured in a consistent way in the Member States. The ensemble was all the more criticized that, in addition to its strictly regulatory “command and control” technique, it consisted in the juxtaposition of diverse measures aiming at preventing that environmental protection national provisions impede the free-movement of products throughout the common market which was then under construction by apprehending new specific phenomena or events such as the environmental catastrophe of Seveso.

In 1993, the Fifth Environmental Action Programme27 suggested having recourse to a wider panel of legal instruments. While it used to be strictly sectorial, thus omitting to take into consideration the numerous interactions specific to the environmental matter, environmental law needed other instruments, more efficient. Numerous pieces of legislation, such as those on air quality or water resources, were consolidated. Existing legislation thus “integrated” the various measures relating to all or part of an environmental area, and started taking into account their possible interactions with other such areas. Other pieces of legislation, sometimes called transverse, also started taking into account the interaction amongst environmental sectors and covering the miscellaneous aspects of the environment impacted by a same phenomenon, e.g. an economic activity. This other approach is also sometimes called “integrated”. Lastly, so-called economic and fiscal instruments rely upon microeconomics as enticement and/or deterrent to certain human activities. However, they did not develop to such an extent that they could possibly replace sectorial regulation.

The Sixth Environment Action Programme of 200228 defined main priorities in the most crucial environmental sectors: climate change, nature and biodiversity, health and quality of life, natural resources and waste. On the legal side, it was less innovative than its predecessor, as it held regulation to remain an essential instrument of the European environmental policy. European institutions could in any even not appear satisfied of the transposition of environmental law into the national legislation, nor of its application, which left no alternative but to decide, with a certain dose of self-criticism, that the full and correct implementation of legislation in force shall be a priority.

The Seventh Environment Action Programme29, which was adopted for the period 2014-2020, takes note of the progresses accomplished in four priority areas. Yet, the EU has set itself the objective of becoming a smart, sustainable and inclusive economy by 2020, with a set of policies and actions aimed at making it a low-carbon and resource-efficient economy. Therefore, the “full-commitment” of the Member States and the relevant EU institutions is required: “ensuring the Union’s long-term prosperity requires taking further action allowing to tackle environmental challenges.” While its contents are aimed at 2020, it is “in line with a clear long-term vision for 2050”, further allowing to “provide able environment for sustainable investment and growth.”

§ 4. – Climate change: major upheaval and energy transition

Environmental law thus barely reached a mature institutional framework and legal structure when it was shaken up by some sort of a “big bang” caused by climate change. International climate negotiation and corresponding EU legislation brought about an all-directions normative bloom. A delicate balance appears between substantive commitments of lesser strength and ambition, on the one hand, and, on the other hand, a less stigmatising sanction regime vis-a-vis the states, relying upon “facilitation” and non-jurisdictional processes.

A. The multilateral climate negotiation and its impacts on European law

The European Community was at the forefront of the fight against climate change when it approved the 1992 United Nations Framework Convention on Climate Change (“UNFCCC”) and the Kyoto Protocol. Without even awaiting their coming into force, it adopted first measures outlined in a European Climate Change Program.30 Such “exemplarity policy”, while disappointing as to the knock-on effect which it purported to produce, nonetheless left Europeans with a large normative production.

1) A disappointing exemplarity policy

Parties to the UNFCCC failed to subscribe commitments for the “post 2012” period in Copenhagen in December 2009 as initially planned. The Europeans had anticipatively adopted ambitious targets for 2020, including a 20% reduction of its greenhouse gas emissions, and even 30% if an international agreement was to be concluded. They had adopted an ambitious “legislative package” on 23 April 2009.31 Unfortunately, they then faced two major hassles: these objectives were not enough ambitious, and the international community was unable to subscribe reduction commitments.

In anticipation of the Paris Conference, the 21st Conference of the Parties to the UNFCCC, or “COP 21”32, the European Council approved a “European Governance for the 2030 Framework” although it was barely consensual. The adoption of concrete measures was delayed and the heads of States and Governments would “revert to the issue after the Paris Conference in view of which they invited other countries to propose ambitious objectives and targets.”33 As to the European Union and its Member States, they should increase their common emission reduction targets from the current 20% by 2012 to 40% by 2030, always has compared to 1990. The Council expressed the wish that a whole set of substantive decisions be taken. The target would be of 43% as compared to 2005 for sectors subject to the Emissions Trading System (“ETS”) and of 30% for other economic sectors; the share of energy coming from renewable sources in consumption in the EU should be increased to 27%; another target of a 27% improvement in energy savings would only be indicative. In the absence of binding targets for the Member States, the Commission would propose a “new” governance process.”

Contrary to what may seem at first sight, the Paris Agreement34 significantly impacts European law35, even though it does not include any concrete emission reduction commitments. The heart of the system lies in the Nationally Determined Contribution (“NDC”) which every Party must communicate every five years, each one of them to “reflect its highest possible ambition.” The Parties will report their contributions within the “enhanced transparency framework” provided for36, and the information thus collected shall be subject to a technical expert review. This may be one of the most important provisions of the Paris Agreement even though that framework will be implemented in a “facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, and avoid placing undue burdens on parties.”

Still, the exemplarity policy which had led Europe to anticipate on the Kyoto Protocol’s implementation, and then on the Copenhagen Conference, gave way in Paris to a wide national discretion coloured with circumspection, the European Union leaving the forefront of the climate negotiation to the United States and China.

2) A flourishing substantive law

The measures that were adopted at a point or another in time have been diverse and varied, some following the traditional sectorial legislation approach of the emissions of selected activities, some providing financial enticement, and yet other ones being market instruments, with many other nuances, and sometimes being precocious.37 The major piece of that toolbox, the ETS, a market mechanism38, was extended and reinforced by one of the Directives of the 2009 legislative package. These Directives are very different one from the other: a decision on the effort to be made by the Member States to reduce their greenhouse gas emissions (the “Effort Sharing Decision”)39, three other Directives relating to the promotion of the use of energy from renewable sources (the “Renewable Energy Directive”)40, to fuel specifications41, and to the geological storage of carbon dioxide42, and one Regulation on the emissions of motor vehicles.43

In furtherance of the Paris Agreement, and in addition to a new revision of the ETS44, the Commission proposed two new “legislative packages.” A first legislative package is designed “to accelerate the transition to low-carbon emissions in all sectors of the economy in Europe.”45 It led to the adoption of two Regulations on 30 May 2018. The first one replaced the above-mentioned Decision No. 406/2009: it is Regulation 2018/842, on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030, contributing to climate action to meet commitments under the Paris Agreement.46 Its purpose is that each Member State maintains its emissions below a set level for activities of the sector’s energy, industrial processes and use of products, agriculture and waste which are not covered by the ETS. The second one, Regulation 2018/841, on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework (“LULUCF”)47 fits within the Paris Agreement objective of a balance between anthropic emissions and absorptions by sinks of greenhouse gases during the second half of the century.

The second “legislative package”, which is entitled “Clean Energy for All Europeans”48, led to the revision of three directives. The new Directive 2018/2001 of 11 December 2018, on the promotion of the use of energy from renewable sources49, which replaced the 2009 Directive50, sets a binding 32% EU-wide objective for 2030. However, Member States are no longer bound by individual objectives, and it falls upon the Commission to see to it that their combined actions, within the framework of “integrated national climate and energy plans”, make possible the common endeavor. By contrast, the legal regimes in favour of energy efficiency remain split between the Energy Performance of Buildings Directive51 and the Energy Efficiency Directive)52 which were both revised by a further Directive of 30 May 2018.53

Thus, the several pieces of climate legislation relevant to the main activity sectors deploy on many fronts, as can be visualized in the representation below:

B. Climate law’s wide normative deployment

To the traditional public interventions, dear to economists, “on the supply side” of energy products, on the one hand, and acting “on the demand side” for those same energy products, on the other hand, one must add in this particular context and beyond any economics considerations, measures which take place “at the citizen’s level.”

1) Public intervention “on the supply side”

Measures “on the supply side” are most controversial because it is often considered that the market and its rules are not favourable to environmental interests. Yet, measures in support of the energy transition often relate to the supply side of the economy.

Such is the case of Regulation 2018/842, on binding annual greenhouse gas emission reductions by Member States just as, before, by the above-mentioned Effort Sharing Decision, where the Member States have a wide margin of discretion to determine how to secure the reductions expected from the main economic sectors which are not covered by the ETS. The above-mentioned Directive on the geological storage of carbon dioxide, “a bridging technology” and not a substitute to actions to support emissions’ reduction54, establishes a legal framework around the exploration and the selection of storage sides, their operation and their closure. Regulation No. 443/2009, also above-mentioned, caps the average motor vehicle emissions, under penalty of an “excess emissions premium” levied on non-complying manufacturers in an amount of EUR 95 per gram of CO2/km.55

The importance of the “supply side” measures can furthermore be assessed with respect to the regime for public support of renewable energies, an essential policy instrument. At the micro-economics scale, financial enticement traditionally ranks first among measures that Member States implement to create conditions likely to allow them to reach their objectives in terms of energy mix. Those enticements, all deployed in favour of producers, are of diverse kinds: investment aid, tax exoneration or reduction, obligation to use energy produced from renewable sources, and direct price support regimes, including feed-in tariffs and premiums… However, the Commission has been insisting on the need to reduce as much as possible the impact of public intervention on electric systems and competition and to put an end to disguised subsidies. The Member States should thus see to it that national rules which are not harmonized do not favour a technology rather than another one and do not allow an electricity producer not to bear the financial consequences of its actions.56

Likewise, it was traditionally accepted that the Member States have the right to decide “to which extent they support energy from renewable sources which is produced in a different Member State”57, which was well illustrated by the Court of Justice’s rulings in the Ålands Vindkraft58 and Essent Belgium cases.59

In theory, the normal operation of the market should be satisfactory if all the decisions of energy purchasers were economically and ecologically rational and public authorities ensured that prices of energy products correctly integrate corresponding externalities. The energy transition would then operate by itself. Yet, the multitude of of all kinds of measures implemented shows that either this not true, or the externalities are not as significant as may be believed, or again they are not effectively reflected in market prices. Wherefrom the need for public intervention to also intervene “on the demand side.”

2) Public intervention “on the demand side”

Thus, the Energy Performance of Buildings Directive aims at “achieving cost-optimum levels” by favouring the use of appropriate technical devices in new buildings which should be “zero energy consumption” as early as 31 December 2020, and also in those subject to major renovation where technically, functionally and economically achievable. Likewise, the Energy Efficiency Directive provides for national action plans covering not only the supply, but also the transport, distribution and final use of energy.

A new acceleration of the “greening” of public procurement took place in 2014 with the latest reform of the relevant legislation.60 Contracting authorities are invited to take into account “all costs over the life-cycle of works, supplies or services”, including “the costs imputed to environmental externalities” among which that of greenhouse gas emissions and “other climate change mitigation costs”, most notably “factors involved in the specific process of production, provision or trading and its conditions.”

However, whatever the importance of public intervention, “on the supply side” and “on the demand side”, the traditional legislative arsenal inspired by economics is not sufficient, to a large extent because political will determines itself within a temporal framework much shorter than that within which energy transition will be able to take place.

3) Public intervention “at the citizen’s level”

One of the driving forces of climate legislation lies in the role of the public at large, that is to say that it requires action “at the citizen’s level”, by contrast to that of an economic agent, be it a supplier or a consumer. Compromises inherent to the quest for a sustainable development, an objective which is today widely accepted, are indeed so difficult to operate that traditional powers have a hard time to find the appropriate means to reach whatever objectives they set for themselves. As a result, they must accept a certain level of direct democracy, the citizens’ influence on actions taken in the framework of the environmental and energy policies. This triggers the question of the existence of a right to energy transition (besides a right to a healthy environment?). In international public law, soft-law obligations are particularly fit for situations in which it is impossible or premature for states to commit to strong undertakings. The Paris Agreement, with respect to its substance if not as to its form, is an example of such a situation, and its implementation within the EU calls for new approaches. The 195 countries which took part in COP 21 thereby recognized the need for action to be taken by all countries, albeit each in its own way. Failure to act or inappropriate action would itself somehow be a legal concern under international, but also regional or national, law so that Courts of competent jurisdiction may step in and draw consequences from deviations according to their legal systems. The information principle and the principle of participation of the public to decision-making have every reason to apply to the energy transition, and perhaps even fundamental rights (e.g., to “a healthy environment”…).

The EU was found to be in breach of the obligations it had subscribed by the Aarhus Convention Compliance Committee61 when citizens submitted than national public authorities had breached their obligation to dispatch correct and sufficient information relating to their action with respect to renewable energies.62 International treaties relating to human rights are a potential progress factor since they include effective judicial access for individuals and since climate change may impair such rights as the rights to life, to autodetermination, to water, to food, to health or to an appropriate quality of life.63 A State’s liability may be at stake by reason not only of its “active” interference with a right, but also of the failure to adopt positive measures that the concrete application of the law require, i.e., of a passive interference.64 A Court in the Netherlands ordered the State to limit the total quantity of national emissions of greenhouse gases65 relying upon the objectives and principles lied down in the UNFCCC and in the TFEU because, while they have no direct effect, they constitute an important view point to appreciate whether the State acted negligently or not in relation to civil liability principles. The Hague Court of Appeals relied on a single ground to confirm that judgment, i.e., that the Dutch state acted illegally because it was in violation of Articles 2 and 8 ECHR,66 and the Dutch Supreme Court dismissed the further appeals.67 Even more recently, the French Conseil d’Etat took a comparable step when it ordered the Government to provide justifications that its actions are consistent with the emissions reduction trajectory provided for by French and EU law68. In the same vein, the UK Court of Appeals required the British Government to take account of its political commitments with respect to climate action, as the case may be by explaining why it would consider appropriate not to comply therewith69.

Up to what point may a citizen force energy transition to be pursued without breaching another citizen’s right? Investor’s rights are at the forefront of public attention because of recent claims in arbitration70, and of the negotiation of the Transatlantic Trade and Investment Partnership. A rather ironical parallel can be drawn with the decision of the French Constitutional Court with respect to a recent major piece of legislation on energy transition “for a green growth.”71 The French law-makers capped the total authorized capacity of production of electricity of nuclear origin at a level below the total amount of the capacities resulting from existing authorisations, thus leaving the operating utility with no other alternative than to close down some of them. According to the Conseil constitutionnel, such provisions “do not prevent” the operator to “claim compensation of the sustained injury.”72 Likewise, the 1994 treaty on the Energy Charter, which was ratified by 51 countries and the EU, and which aimed at facilitating the former Soviet bloc countries’ transition, agreed to optimise production, transformation, transport, distribution and energy consumption and to facilitate technology transfers, but not without securing investor protection…

C. Institutional ambiguity and temptation of an “Energy Union Governance”

It is only the Lisbon Treaty, which came into force on 1 December 2009, which instituted a European energy policy at Article 194 TFEU, and even then, it did so subject to such constraints that climate commitments subscribed by the EU at the multilateral level will require palliative measures.

1) A constrained institutional framework

While the Member States agreed to “regularly exchange information on major national energy decisions which have a possible impact on other Member States”, they did so subject to “fully respecting national choices of energy mix.”73 Then, the Commission purported to define the role, the degree and the nature of public intervention, respecting the subsidiarity principle, at the European, regional, national or local level, albeit inviting the Member States to follow consistent approaches throughout the Union. It insisted on the necessity to reduce the public intervention’s impact on electric systems and competition to the minimum extent, without favouring a technology rather than another one, nor allowing an electricity producer not to bear the financial consequences of its actions.74 This is an arm-wrestling moment: the Member States want the EU to comply with its international commitments without themselves incurring corresponding constraints, and the Commission, which is the guarantor of the EU’s compliance with such international commitments, is looking for means to ensure such compliance.

From an institutional point of view, there is a commonality of concerns between the environment policy and the energy policy as a result of their respective objectives.75 The environmental policy, inter alia, pursues the objective of a “prudent and rational utilisation of natural resources”, of which energy resources are obviously a part. The energy policy must, inter alia, “promote energy efficiency and energy saving and the development of new and renewable forms of energy.” This may seem quite confusing since the main relevant pieces of secondary law pre-existing the energy policy, those on the promotion of energy from renewable sources, the energy performance of buildings and energy efficiency, were all based on former Article 175(1) TEC (now Article 192(1) TFEU), so that one of the main objectives of the energy policy was, initially, borne by the environmental policy. Indeed, the two latter pieces of legislation were repealed and replaced by similar measures based on Article 194(2) TFEU, i.e., the Energy Performance of Buildings Directive and the Energy Efficiency Directive. And Article 192(1) was replaced with Article 194 as the new legal basis for the Renewable Energy Directive as well. Such changes of legal basis, for legal regimes the subject and purpose of which remain substantially identical, illustrates the proximity which exists between those two policies. The Lisbon Treaty thus effectuated a puzzling translation of European powers from the environmental action field to that of the energy policy.

However, Article 194(2) TFEU provides that the measures necessary to achieve such objectives “shall not affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply […].” Thus, on the one hand, the energy policy does not allow the adoption of measures affecting in any way “the choices between different energy sources” of a Member State or “the general structure of its energy supply” (Article 194(2) TFEU). However, on the other hand, measures “significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply” may be adopted, quite surprisingly, within the environment policy. The fact that this may only be accomplished through the special legislative procedure, i.e., with the unanimity of the Member State’s approval (Article 192(2)(c) TFEU) reflects national reluctance with respect to any convergence of energy mixt.

2) A new “governance”

The Commission, facing those constraints and the common obligations of the Member States, and being unable to rely upon the said Member States, proposed the two above-mentioned 2016 legislative packages. It thus imagined a new “Governance of the Energy Union” which would allow it to play its role as the guardian of the Treaties and to see to it that the EU reaches its objectives. Such is the purpose of Regulation 2018/1999 of 11 December 2018, on the governance of the energy union and climate action76, which proposes to “implement strategies and measures designed to meet the objectives and targets of the Energy Union and the long-term Union greenhouse gas emissions commitments consistent with the Paris Agreement” and to “ensure the timeliness, transparency, accuracy, consistency, comparability and completeness of reporting by the Union and its Member States to the UNFCCC and Paris Agreement secretariat.” To this end, an “iterative” process between the Commission and the Member States is put in place for the purpose of preparing and implementing “integrated national energy and climate plans” relating to the ETS as well as to the other relevant regimes on renewable energies, energy efficiency, energy performance of buildings, etc. The Commission may issue recommendations with respect to the level of ambition of objectives, targets and contributions of which the Member States “shall take utmost account.” It would then report on the progress accomplished towards those common objectives and it could adopt a number of measures to that end.

A comparison is possible between the expert review of the “enhanced transparency framework” of the Paris Agreement and the new “Governance of the Energy Union”, between the national reports provided to the Paris Agreement’s Secretariat and those provided to the European Commission, and between their respective treatments and the publicity they would be given. One would then also be led to consider the legal value of the above-mentioned Commission’s recommendations, perhaps in consideration of the “principle of sincere cooperation” of Article 4(3) TEU.

At the international level as well at the European level, the normative flexibility which is becoming a prerequisite for States to make any commitment impacts procedural rules and favours facilitation and non-stigmatizing expert reviews. In short, one can notice the emergence of a “soft” procedural regime, to some extent replicating the soft-law nature of the corresponding substantive commitments. This makes the way wide open to non-state actors, economic actors as well as the civil society, and perhaps more importantly to all types of Courts, to grasp states’ deficiencies, far from the soft-spoken jurisdictional organisation under which they used to find shelter.

The planetary imperative of fighting climate change thus leads to some type of a deconstruction of European law which resounds to the big climate upheaval. On the one hand, the multilateral negotiation and the differences between the EU Member States cause a downgrading of substantive law and a development of soft-law commitments. On the other hand, the universality of climate phenomena requires that multiple actions be taken, of a diversity and of a flexibility so far unknown. Procedural law thus has an unquestionable advantage over substantive law and the door is open to new mechanisms, the flexibility and “softness” of which are of paramount importance. The Paris Agreement is to be considered, from that point of view, as a precursor of European law.

§ 5. – The European Green Deal

The European Commission presented a communication entitled “The European Green Deal” on 11 December 201977, the day before the European Council endorsed “the objective of achieving a climate-neutral EU by 2050, in line with the objectives of the Paris Agreement”78 and announced new NDCs to that effect.79 A “roadmap for making the EU’s economy sustainable by turning climate and environmental challenges into opportunities across all policy areas and making the transition just and inclusive for all”80, the “Green Deal” is both an anticipated announcement of these new NDCs and a prefiguration of the EU’s forthcoming Eighth environmental action programme for 2030. Indeed, in the meanwhile, the Council submitted the EU’s and its Member States’ new NDC to the CCNUCC on 18 December 2020 with an increased emissions reduction target of at least 55 % by 2030 as compared to 199081.

The Green Deal describes itself as a “new growth strategy that aims to transform the EU into a fair and prosperous society, with a modern, resource-efficient and competitive economy where there are no net emissions of greenhouse gases in 2050 and where economic growth is decoupled from resource use” as much as at meeting traditional environment and health concerns. At the same time, “this transition must be just and inclusive.” The Union would transform its economy and society “to put it on a more sustainable path”, a “new path of sustainable and inclusive growth.” The Green Deal is part of the strategy to implement the UN 2030 Agenda and Sustainable Development Goals (“SDGs”).82 To that end, the EU must “rethink policies” for clean energy supply across the economy, industry, production and consumption, large-scale infrastructure, transport, food and agriculture, construction, taxation and social benefits, which may require delicate “potential trade-offs between economic, environmental and social objectives.”

As support for these ambitious claims, the communication comes with a list of “key policies and measures”, a long series of initiatives, many of a legislative nature, that the Commission contemplates launching in 2020-2021.83 While the most widely noticed one is a proposal for a “first European ’Climate Law’” that would “enshrine the 2050 climate neutrality objective in legislation”, others would range from the strengthening of current climate legislation and the adoption of “a new, more ambitious EU strategy on adaptation to climate change”84 to new steps in the protection of biodiversity, in the regulation of industrial activities, or in the greening of the common agricultural policy.85 Without any attempt at exhaustivness, two main trends are to be especially noted from a legal standpoint, with respect to climate (A), and environment and economics, including social considerations (B).

A. Climate, the main target: toward “carbon neutrality by 2050”

The single most significant working project of the Green Deal is “[i]ncreasing the EU’s climate ambition for 2030 and 2050.”86 The panel of measures contemplated from that point of view is quite diverse since it encompasses not only the above-mentioned “first European Climate law” (1.), as already implemented climate legislation is to be revised (2.), but also,, far beyond those, relevant legislation with respect to buildings and transportation (3.), among others.

1) The “first European ’Climate Law’”

The “first European ’Climate Law’”, which is at the heart of the Green Deal, is supposed to make carbon neutrality by 2050 legally binding and ensure that “all EU policies contribute to the climate neutrality objective and that all sectors play their part.”87 As a matter of fact, the Paris Agreement already contemplates “[…] to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century […].” For the EU, one of the most advanced economies with a strong historic responsibility in the climate area, carbon neutrality by 2050 is thus nothing more than strict compliance with the Paris Agreement.

The Commission indeed presented on 4 March 2020 a proposal for a regulation establishing the framework for achieving climate neutrality (European Climate Law)88, which would set out “a binding objective of climate neutrality in the Union by 2050 in pursuit of the long-term temperature goal set out” in the Paris Agreement and provide “a framework for achieving progress in pursuit of the global adaptation goal” also established therein.89 The EU institutions and the Member States would be required to take, each at its level, the measures necessary “to enable the collective achievement” of that objective, of course “taking into account the importance of promoting fairness and solidarity among Member States.”90 To secure the implementation of that common albeit not individualized goal, the “European Climate Law” would rely on the energy union’s governance mechanism that was laid down for similar purposes under existing legislation.91

2) Revision of environment and energy legislation implementing the Paris Agreement

As the so-called “first” climate law is obviously not such, the Green Deal also announces that the bulk of European climate law will be revised, starting with the ETS “including a possible extension […] to new sectors”! Sectors beyond the scope of the ETS are next in the Commission’s resolve to “review and propose to revise where necessary” other above-mentioned pieces of legislation, especially Member State targets to reduce emissions under Regulation 2018/842 and the “LULUCF” Regulation on land use, land use change and forestry (Regulation 2018/841), i.e., the two main components of the legislative package derived from the 2016 “Accelerating Europe’s transition to a low-carbon economy” action plan.92

The Green Deal also aims at the three directives derived from the other 2016 action plan, “Clean Energy for All Europeans”93, i.e., those on the promotion of the use of energy from renewable sources (Directive 2018/2001), on the energy performance of buildings (Directive 2010/31) and on energy efficiency (Directive 2012/27). The Commission will assess the need for additional measures upon its review of the Member States’ energy and climate plans pursuant to the Governance of the Energy Union mechanism.

3) Construction and mobilities

With respect to construction, besides the strict application of the legislation on energy performance of buildings, the Green Deal discusses several possibilities, such as including them in the ETS, incentives to renovation of existing buildings, and the lifting of national regulatory barriers to renovation.

As to the transport sector, the Commission considers that a decrease of 90% of its emissions “is needed by 2050”, to which end it proposes a “strategy for sustainable and smart mobility.” It furthermore intends to put an end to fossil fuel subsidies and to review tax exemptions for aviation and maritime fuels, and it will consider such moves as the extension of ETS to the maritime and road transport sectors, the decrease of ETS allowances allocated for free to airlines, and “effective road pricing.”

B. Difficult balancing of interests: environment and economics

While climate change action thus takes precedence in the Green Deal over more classical aspects of the environment – it is Green before and above all – (1.), it does not and may not ignore economic and social dimension considerations – it is also a Deal – (2.).

1) The Green Deal and the environment

The environment, as opposed to climate, is covered in the Green Deal on three main grounds: circular economy, biodiversity and pollution.

Circular economy is, more than ever, an objective of the EU’s environment policy94