Monthly Archives: May 2013

Is justice what you can afford to be done? ECJ turns to Aarhus Convention to apply ‘not prohibitively expensive’ in the EIA Directive.

gavc law - geert van calster

In Edwards, the European Court of Justice (‘ECJ’) turned to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, to interpret the provision ‘not prohibitively expensive’ in the European Directive on Environmental Impact Assessment (‘EIA’). These provide that members of the public (with sufficient interest) must have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive. Any such procedure must be, in the words of the Directive, ‘fair, equitable, timely and not prohibitively expensive.’

The House of Lords had affirmed a Court of Appeal’s decision to dismiss the appeal of Ms Pallikaropoulos and, on 18 July 2008, ordered her to pay the respondents’ (including the Environment Agency) costs of…

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WTO compatibility of biofuels sustainability criteria: The Argentinian complaint

gavc law - geert van calster

Argentina has requested consultations, the first step in the WTO’s dispute settlement procedure, with respect to the EU’s biofuels sustainability criteria, contained in RED, its renewable energy Directive. The development of biofuels criteria per se is full of pitfalls. For starters, the EU’s Directive has effectively skirted the issue of sustainability. As all students of environmental law and policy have been told ad nauseam, sustainable development has three pillars (ecological, economic, social), not just the one (ecological /environment) which the Directive has quantified. On social and economic impact of the EU’s regime, the European Commission is merely to report. Evidently, quantifying all three is not straightforward: witness also the demise of the Clean Development Mechanism, CDM,  one of the flexible mechanisms under the Kyoto Protocol to the United Nations Framework Convention on Climate Change.

With respect to the environmental pillar, RED employs a standard value of CO2 emission…

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Dreams against Reality

The crisis of legitimacy of the European Union is yesterday’s news. Since the demise of the Constitutional Treaty, the road to integration has found such unbeatable obstacles that speaking of federalism is today a pure academic exercise. Instead, other issues have to be identified and solved.

Several forced steps taken during the crisis, triggered by necessity and not supported by public opinion, have increased popular “resistance” to integration. Some scholars, such as German philosopher Jurgen Habermas, suggest that this sentiment has been fueled by the incapacity of national politicians: “Our lame political elites, who prefer to read the tabloid headlines – says Habermas – must not use as an excuse that the populations are an obstacle to a deeper European integration”.

Habermas’ wish is that the crisis gives Europeans a new sense of a shared destiny: but this feeling is not there. Simply said, citizens of the European Union – and citizens of the Eurozone – don’t perceive themselves as one polity, the crisis helping to tease out long buried nationalist prejudices.

Both national and European politics failed: Member states hid crucial information on the status of their respective banking sectors and each one of them proceeded to recapitalize its own banks, de facto determining a forced repatriation of capitals and violating the principles of the internal market. The Commission behaved cowardly on banking bailouts and played a marginal role throughout the whole crisis. Only the ECB surged as a “hero” on the world’s scene and is likely to be the biggest interlocutor for financial markets and governments, raising the eyebrows of federalist champions.

The reality is that the future of decision-making in the Euro-zone looks more and more inter-governmental, which is not necessarily a bad thing. Although inter-governmentalism is an inefficient method for decision-making, it is to date the only one that guarantees a certain amount of democratic legitimacy, as national actors are de facto accountable in a way that European institutions are not. Supra-national decision-making might be a more efficient tool to manage the Euro-zone and a driving force for better solutions, less biased by the influence of strong national interests. However, accountability would be minimal should the existing institutions be guiding the decision-making process.

In the tension between democracy and efficiency, the current Euro-zone decision-making process reflects the status quo: democratically elected governments are the only ones legitimized to discuss certain crucial measures because they are accountable with national polities – the only ones that exist so far. And when critics say that “national governments refuse to give away their competences”, they forget to remark that this is a consequence of a democratic, legitimate request from voters.

Even in the remote possibility that a method is found, which guarantees efficient and accountable political decisions at a supranational level, we would still be stuck with the problem of “which” institutions should be used to achieve such an objective: can the European Commission and the European Parliament act as catalysts for political decisions in the Euro-zone, given that they represent also countries – and therefore interests – which are not part of it? And the main problem in the near future will be if the two blocs’ will have different, sometimes opposite economic and political interests.

On the verge of a new era for politics in the European Union, repeating old mantra only hinders the chance to discuss the perspectives with an open mind.

Alfonso Ricciardelli

Kamikaze in an enamel bowl

As always, a great view from Britain IN Europe. Geert.

EU Perspectives

Watching Tories tear themselves apart is disturbing but bizarrely fascinating. Rather like watching spiders fight to the death in a steep enamel bowl or like watching an illegal cock-fight through half-closed eyes, where all that remains at the end of the fight is blood, guts and feathers. One wants to look away but somehow one can’t avert the eyes.

Quick to smell blood and always on the look-out for a good little story is the British media. Why bother talking about the British Prime Minister’s attempts to support a trade agreement with the US when you can make him squirm on the podium next to Barak Obama by grilling him on the EU?

To stick the dagger in deeper, The Times managed to drag a couple of “havebeens” from yester-year out of the wood-work proclaiming why it is vital for the UK to vote no to…

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Preussen Elektra confirmed? Bot AG in Essent

gavc law - geert van calster

Bot AG in Essent, Cases C-204/12 through to C-208/12 Essent v VREG (at the time of writing the English version of the Opinion was not yet available, however it will be soon) summarised the questions referred as whether the Flemish support scheme for renewable energy, which grants renewable energy certificates to producers of such energy only if they are located in the Flemish Region, and which obliges electricity distributors to surrender a minimum amount of such certificates without being able to offer such certificates obtained in other EU Member States, is compatible with the free movement of goods and with the EU’s non-discrimination principle. Directive 2001/77 regulates both renewable energy (or ‘green’) certificates – which are used by a Member State to show its meeting its obligations to produce a minimum amount of electricity from renewable sources – and certificates of origin, which allow an electricity distributors to prove that…

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System error: FEDERALISM.EU is missing. Try reinstalling to fix the problem

European federalism has lost direction and is wandering in search of an identity. This is the feeling I have when I see that federalists’ ideas of what Europe should become are vague and focused on the means, and that different concepts are concealed behind the same, in some cases even wrong, “federal” label.

While euroscepticism is re-emerging, boosted by the crisis and the unpopular answers given to it, federalists are not updating their recipe to face the new challenges and, most decisively, only unveil few of the ingredients that they believe are needed. Or maybe, they don’t know them all.

Politicians supporting European federalism – and here I mean political personalities that influence public opinion, not any MEP in Brussels – are not clear about what they propose to the people. The webpage of the Union of European Federalists listing the “federalist outings” offers useful insights: except some references to the need for a fiscal union, the supposedly federalist statements of these politicians are rather general, even ambiguous. In Italy we had an interesting case few weeks ago, when the newly appointed Prime Minister Letta, during his first speech to the Chamber, declared that we should move towards the “United States of Europe”: what he actually has in his mind is still to be understood.

The aura of uncertainty surrounding federalists’ utopia works against their own cause: eurosceptics have too much of an easy task in portraying the federalist project as the dystopia of a European super-State that wants to erode and eventually replace national democracies and identities, imposing undemocratic and technocratic rules from abroad. They strategically exploit the common people’s fear of the “unknown”, whereas federalists’ political incompleteness and vagueness fuels this fear.

If federalists want to have at least some chances of inverting the current trend and obtaining the support they lack, they need to propose a concrete and realistic political project and, in the first place, converge on a common and comprehensive vision of what a future federal Europe might be. Considering the political heterogeneity of federalists, it is not going to be easy and probably this is the reason why it hasn’t happened yet. But blurred projects are doomed to fail because the people need and want to be well-informed, and rightly so, before granting democratic endorsement.

The federal vision, as I said, should be comprehensive if it wants to have a chance of being successful. It will not be enough to propose an attractive institutional shape, or to determine the repartition of competences between the federal and the federated levels. The project will need to identify the human, social and economic aims – a European model – to pursue, putting forward radical choices when needed, solving the problem of democratic representation, finding the right synthesis and balance between established and emerging principles, without falling into the trap of the race to bottom towards the minimum common denominator.

Although there is no shortage of arguments in support of a federal solution, popular “demand” is weak and political “supply” is not up to the expected standards yet. In this context, the way towards any form of federalism can only be “supply driven”, politicians have to explain to the people what it is good, in which form and when. Some would call it elitism, giving it a negative spin; I think this would be political courage, the same that few charismatic political personalities have had in history. Probably a similar profile does not exist in today’s Europe, I hope one is in the making in the “Erasmus generation”.

The federalist project will hence need the commitment of major national political parties, as these are the ones able to influence public opinion, while federalist movements and parties have a limited political agenda and support. Considering that any federal choice would affect the fundamental principles and the constitutional organisation of the society, it cannot be a partisan exercise but will need the convergence and agreement of different political forces, a sort of thematic Große Koalition. A change may occur when federalism will be mainstreamed in the agenda and narrative of leading national political parties.

I acknowledge that all I say is difficult to happen in the short or medium term, but the emergence on the European political scene of the “Erasmus generation” may help speed up the change. In any case, I would not despair: the petit pas approach is still alive and has delivered impressive results over the last decades. However, once and if the step towards a fiscal union will have been done, its propulsive role will probably reach the limits and the grand pas be needed. Or maybe not, if the renewed Union will be capable of providing the answers people need without reaching the federal rank. Because at the end of the day, are results – and not the means – that count.

Mauro Gagliardi (