North East Pylon Pressure Campaign Limited v An Bord Pleanála – C 470/16 – 15 March 2018

Decision on the ‘special costs rules’ in environmental cases delivered

A number of questions were referred to the Court of Justice of the European Union ("CJEU") on the question of costs in environmental cases, where an application for leave to seek judicial review had been brought in relation to the North-South Interconnector. The High Court ruled that the application for leave was premature, and referred a number of questions to the CJEU on whether the 'special costs rules' in environmental cases would apply where leave had not been granted. The CJEU found, in summary, that the special costs rules:

  • apply to judicial review leave applications (and not only to substantive judicial review hearing);

  • apply to any alleged breaches of EIA Directive;

  • may apply to any alleged breaches of national law which give effect to EU environmental law other than the EIA Directive. It remains to be seen how this will be applied by the Irish Courts, but it could have the effect of extending the 'special costs rules' to cases involving the Birds and Habitats Directives;

  • do not apply to arguments with no EU environmental law dimension, in which cases costs will follow the event, i.e. the losing party will pay the winning party’s costs.

The decision can be found here.

Revised EU ETS Directive published – 19 March 2018

Revised Directive (Directive 2018/410) to enter into force on 9 April; Member State transposition is required by 9 October 2019.

Some key points are outlined below:

  • The auctioning of allowances remains the general rule, with free allocation as the exception. The share of allowances to be auctioned is 57 % over the period from 2013 to 2020. From 2021 onward, this figure will remain unchanged.

  • Free allocation will not expire; existing measures will remain after 2020 to prevent the risk of carbon leakage.

  • Free allocation will be given to district heating as well as to high efficiency cogeneration (as defined by the Energy Efficiency Directive 2012/27/EU) following the procedures outlined in the Directive.

  • 10% of the allowances to be auctioned by Member States will be distributed among those Member States whose gross domestic product (GDP) per capita did not exceed 90 % of the Union average in 2013, and the rest of the allowances, among all Member States on the basis of verified emissions.

  • Member States will be able to cancel allowances from their auction volume in the event of closures of electricity-generation capacity in their territory.

  • Member States are required to partially compensate (in accordance with State aid rules) installations in sectors or subsectors which have been determined to be exposed to a significant risk of carbon leakage because of costs related to greenhouse gas emissions passed on in electricity prices, including for the consumption of electricity by the installations themselves produced through the combustion of waste gases. Up to 25 % of the revenues generated from the auctioning of allowances can be used for indirect cost compensation.

  • A Modernisation Fund should be established from 2 % of the total quantity of allowances (to run from 2021- 2030) and auctioned in accordance with the rules and modalities for auctions taking place on the Common Auction Platform set out in Commission Regulation (EU) No 1031/2010.

  • The existing provisions which are in place for small installations to be excluded from the EU ETS allow the installations which are excluded to remain so, and Member States can update their list of excluded installations at the beginning of each allocation period.

  • The Market Stability Reserve will become operational in 2019.

The Directive can be found here.

Publication of REACH Review – 5 March 2018

In its press release, the Commission stated that the Review demonstrated that implementation of the Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (or REACH Regulation) by EU companies and authorities was ensuring the safe use of chemicals and the phase-out of dangerous substances.

The Review evaluated the effectiveness of the REACH Regulation by examining the extent to which it fulfilled its core objectives, identified as:

  • achieving a high level of protection of human health and the environment,

  • promoting alternative methods for assessment of hazards of substances, and

  • achieving the free circulation of substances in the internal market; while

  • enhancing competitiveness and innovation.

At pages 39 and 40 of the REACH Review the Commission stated: “Progress has been made towards the REACH objectives. The impact on protection of human health and the environment will take a number of years to become visible. However, evidence indicates that the outcomes defined in the intervention logic are being delivered in line with expectations. Information on substances is generated, passed to some extent along the supply chain and used to better assess and manage chemical risks, implying that REACH is being effective in terms of protecting human health and the environment to some extent. The development and consideration of alternative methods have greatly improved during the last ten years, although this may have been at the expense of delivering (hazard) information. In fact, alternative methods are not yet available for high-tier endpoints but registrants tended to avoid animal testing. Regarding the free circulation of substances on the internal market, it can be concluded that REACH is delivering towards this objective. No clear effects are seen on the competitiveness and innovation as those depend on other more important factors that influence the market.

The Report can be found here.