¹ Scott, , (2002) 51 ICLQ 4 996Google Scholar.

² Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme OJ 2002 L 242/1.

³ See, for instance, ‘The EU is a leading force in the world in taking action on environmental sustainability and, in particular, on climate change.’ The Commission's Green Paper on market-based instruments for environment and related policy purposes, COM (2007) 140 final, at para 1.

⁴ See, for instance, the discussion in the December 2006 Report on International Competitiveness prepared for DG Environment in the context of the EU ETS Review, available at http://ec.europa.eu/environment/climat/emission/pdf/etsreview (accessed May 14, 2010).

⁵ The Commission proposed a carbon tax in 1992, which failed to meet the Council's approval.

⁶ See the Conclusions of the Environment Council, March 15, 2010, 7522/10, 8.

⁷ Commission Green Paper (n 3).

⁸ For an overview of environmental market-based instruments, see Stewart, R., ‘The Importance of Law and Economics for European Environmental Law’ (2002) 2 Yearbook of European Environmental Law 856Google Scholar.

⁹ See, for instance, R Stavins, ‘Market-based Environmental Policies: What can we learn from U.S. experience (and related research)?’ (Washington, Resources for the Future Discussion Paper 03-43) 13.

¹⁰ See, for instance, Commission Communication, ‘2009 Review of the European Union Strategy for Sustainable Development’ COM (2009) 400 final, and Commission Green Paper on market-based instruments for environment and related policy purposes, (n 3) para 5.

¹¹ See the Fourth Report (AR4) of the Intergovernmental Panel on Climate Change (Geneva, 2007) and Rajamani, L, ‘Addressing the ‘Post-Kyoto’ Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime' (2009) 58 ICLQ 4CrossRefGoogle Scholar 803.

¹² See, for instance, ‘The EU has always been at the forefront of concrete action against climate change.’ Communication from the Commission, ‘International Climate Policy post-Copenhagen: Acting now to reinvigorate global action on climate change’ COM (2010) 86 final. The EU is a founder member of the International Carbon Action Partnership, comprising States and regions which are pursuing the development of carbon markets through cap-and-trade mechanisms.

¹³ See the Conclusions of the European Council of 29–30 October 2009, 15265/1/09, para. 7.

¹⁴ Art 191(1) TFEU.

¹⁵ See the Decision of the Conference of the Parties to the UN Framework Convention on Climate Change, Fifteenth Session, December 17–18, 2009 (the ‘Copenhagen Accord’), Appendix I.

¹⁶ See European Environment Agency, Annual European Community Greenhouse Gas Inventory 1990–2007 and Inventory Report 2009 (EEA Technical Report No 4/2009), 6. This figure excludes the emission and effects of offsetting from the land use, land change and forestry sector.

¹⁷ See the Commission Proposal for a Directive of the European Parliament and the Council establishing a framework for greenhouse gas emissions trading within the European Community and amending Council Directive 96/61/EC (COM (2001) 581 final) and Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC OJ 2003 L 275/32 (the ‘2003 ETS Directive’).

¹⁸ Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community OJ 2009 L 140/63 (the ‘2009 ETS Directive’).

¹⁹ Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC OJ 2009 L 140/16.

²⁰ Regulation 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community's integrated approach to reduce CO 2 emissions from light-duty vehicles OJ 2009 L 140/1.

²¹ The 2003 Directive provided for two multiannual trading periods: Phase I, running from 2005 to the end of 2007, and Phase II, running from 2008 to the end of 2012.

²² Art 9, 2003 ETS Directive.

²³ See further, Fourth Report of the Environmental Audit Committee of the UK House of Commons, The Role of Carbon Markets in Preventing Dangerous Climate Change (HC 290) (London, 2010).

²⁴ Art 1(9) of the 2009 ETS Directive states that this must be done ‘by a linear factor of 1,74 % compared to the average annual total quantity of allowances issued by Member States in accordance with the Commission Decisions on their national allocation plans for the period from 2008 to 2012.’

²⁵ Initially covering only major industrial carbon polluters such as the cement and steel industries (see Annex I of the 2003 ETS Directive), the ETS's scope was extended to the aviation sectors by Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community OJ 2009 L 8/3, and covers around 40 per cent of the EU's overall carbon emissions. The 2009 ETS Directive broadens its scope to a wider category of installations (see the amended Annex I), subject to a possible exclusion by Member States of small installations from the scheme (see amended art 27).

²⁶ See amended art 10, 2009 ETS Directive. See also, however, the transitional rules in arts 10a and 10c, allowing free allocation in a transitional period under certain conditions.

²⁷ See amended art 13, 2009 ETS Directive.

²⁸ See amended art 12 and Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide OJ 2009 L 140/114.

²⁹ Art 10b, 2009 ETS Directive.

³⁰ Arts 10a and 13, 2009 ETS Directive.

³¹ Art 10b, 2009 ETS Directive.

³² See T-183/07 Poland v Commission and Case T-263/07 Estonia v Commission, judgments of September 23, 2009, not yet reported (under appeal as Case C-504/09 P and Case C-505/09 P).

³³ Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity OJ 2003 L 283/51, as amended. The Commission is currently reviewing the Energy Taxation Directive with a view to proposing a minimum EU-wide carbon tax going beyond the scope of the current Directive.

³⁴ See, for instance, the Community Guidelines for State Aid for Environmental Protection OJ 2008 C 82/1 and Case C-487/06 P British Aggregates Association v Commission [2008] ECR I-10505.

³⁵ Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora OJ 1992 L 206/7, as amended, and Directive 2009/147 of the European Parliament and the Council of 30 November 2009 on the conservation of wild birds (codified version) OJ 2010 L 20/7.

³⁶ See, for instance, Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visseri [2004] ECR I-7405 and Case C-304/05 Commission v Italy [2007] ECR I-7495, which concerned a project to modify ski runs for the 2005 World Alpine Ski Championships.

³⁷ See the EU's Environmental Policy Review 2008 (Brussels, 2008), 57.

³⁸ Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage OJ 2004 L 143/56. The transposition period for the Environmental Liability Directive expired in 2007.

³⁹ See Case C-378/08 Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economic, judgment of March 9, 2010, not yet reported and Joined Cases C-379/08 and C-380/08 Raffineri Mediterranee and others, judgment of March 9, 2010, not yet reported.

⁴⁰ See Commission Communication, ‘Halting the Loss of Biodiversity by 2010—and beyond—Sustaining ecosystem services for human well-being’ COM (2006) 216 final and the Environmental Council Conclusions of March 16, 2010 (7536/10).

⁴¹ Environmental Council Conclusions of March 16, 2010 (7536/10), para 2.

⁴² ibid. The Council notes that ‘the annual loss of ecosystem services under a business-as-usual scenario is estimated to be equivalent to around €50 billion, while by 2050 the accumulated welfare losses could be equivalent to 7% of annual consumption.’ See further, The Economics of Ecosystems and Biodiversity, a major study launched by Germany and the Commission (Report for Policy-Makers released on November 13, 2009 and available at http://www.teebweb.org (accessed May 14, 2010)).

⁴³ Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives OJ 2008 L 312/3. The transposition period for the 2008 Directive expires on December 12, 2010.

⁴⁴ ibid, recital 8.

⁴⁵ That is to say, not specific to a particular waste stream, such as packaging waste.

⁴⁶ Art 11, Directive 2008/98.

⁴⁷ ibid art 11(2).

⁴⁸ ibid arts 17–20.

⁴⁹ The five levels are: prevention; preparing for re-use; recycling; other recovery (eg energy recovery); and disposal.

⁵⁰ By art 3(1), Directive 2008/98, ‘‘waste’ means any substance or object which the holder discards or intends or is required to discard.’

⁵¹ ibid art 6.

⁵² ibid art 5.

⁵³ See further, Case C-494/01 Commission v Ireland [2005] ECR I-3331, discussed below.

⁵⁴ See the report commissioned by the Commission, Study on the feasibility of the establishment of a Waste Implementation Agency, December 7, 2009, available on http://ec.europa.eu/environment/waste (accessed May 14, 2010).

⁵⁵ See, for instance, the UK's response, available at www.parliament.uk/deposits/depositedpapers/2010/DEP2010-1054.doc (accessed May 14, 2010). The UK is against the idea of an EU waste enforcement agency.

⁵⁶ Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC OJ 2006 L 396/1.

⁵⁷ ibid, Title II.

⁵⁸ ibid, Title VI.

⁵⁹ ibid, Title VII.

⁶⁰ ibid, Title VIII.

⁶¹ See further, Heyvaert, V., ‘No data, no market: The future of EU chemicals control under the REACH Regulation’ (2007) Env Law Rev 201CrossRefGoogle Scholar.

⁶² See, KPMG International, The future of the European Chemicals Industry (2010), available at www.kpmg.com (accessed May 14, 2010).

⁶³ UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on June 25, 1998.

⁶⁴ Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters OJ 2005 L 124/1.

⁶⁵ Though see Case C-216/05 Commission v Ireland [2006] ECR I-10787 (on the requirement of a fee for participation in the context of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175/40) as amended) and Case C-266/09 Stichting Natuur en Milieu OJ 2009 C 267/26 (pending).

⁶⁶ Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC OJ 2003 L 41/26 and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC OJ 2003 L 156/17.

⁶⁷ Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 Environmental Matters to Community institutions and bodies OJ 2006 L 264/13.

⁶⁸ The 2003 Directives apply within the fields of the Environmental Impact Assessment Directive (Directive 85/337, note 65 above, as amended) and Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257/26), as amended.

⁶⁹ See similarly, the principle of national procedural autonomy set down, for instance, in Case 33/76 Rewe v. Landwirtschaftskammer [1976] ECR 1989, para 5. See the Commission's Proposal for a Directive on Access to Justice in Environmental Matters COM (2003) 624 final, which never progressed past a first Opinion of the European Parliament.

⁷⁰ See art 10a of Directive 85/337, (n 65) above, as amended and Case C-s427/07 Commission v Ireland, judgment of July 16, 2009, not yet reported, para 94. See also, Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening, judgment of October 15, 2009, not yet reported.

⁷¹ Regulation 1367/2006, (n 67) art 10.

⁷² Case 25/62 Plaumann & Co v Commission [1963] ECR 95, confirmed by Case C-50/00P Unión de Pequeños Agricultores (UPA) v. Council [2002] ECR I-6677.

⁷³ Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and Others v Commission [1998] ECR I-6651.

⁷⁴ Case C-176/03 Commission v Council [2005] ECR I-7879. See also, Case C-440/05 Commission v Council [2007] ECR I-9097.

⁷⁵ See Case C-440/05 Commission v Council [2007] ECR I-9097.

⁷⁶ Case C-494/01 Commission v Ireland, supra note 53. See generally, Wennerås, P, ‘A New Dawn for Commission Enforcement under Articles 226 and 228 EC: General and Persistent (GAP) Infringements, Lump Sums and Penalty Payments’ (2006) 43 CML Rev 1Google Scholar 31.

⁷⁷ ibid para 37.

⁷⁸ ibid para 44.

⁷⁹ A recent example is Case C-121/07 Commission v France [2008] ECR I-9159 concerning failure to comply with an infringement judgment relating to EU legislation on genetically modified organisms (France was ordered to pay a lump sum of €10 million).

⁸⁰ Art 260(2) TFEU: ‘If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. …’

⁸¹ See also, Case C-503/06 R Commission v Italy, Order of the President of February 27, 2007 [2007] ECR I-19, Case C-76/08 R Commission v Malta, Order of the President of April 24, 2008 [2008] ECR I-64, Case C-573/08 Commission v Italy, Order of the President of December 10, 2009 [2009] ECR I-0000.

⁸² Case C-193/07 R Commission v Poland, Order of the President of April 18, 2007, not published in the ECR (see application at OJ 2007 C 199/14).

⁸³ Case C-193/07 R Commission v Poland, Order of the President of July 18, 2007, not published in the ECR (see application at OJ 2007 C 199/14). A further application for interim measures was lodged by the Commission in the same case, and subsequently struck out following further assurances from Poland that it would not commence works until the main proceedings had been concluded: see Case C-193/07 RII Commission v Poland, Order of the President of January 25, 2008, not published in the ECR (see application at OJ 2007 C 199/14).

⁸⁴ Case C-193/07 Commission v Poland, Order of the President of August 25, 2009 OJ 2009 C 11/19.

⁸⁵ In the Commission's 2008 Environmental Policy Review, for instance, only three of 26 policy areas given a performance rating were rated as achieving a ‘good performance’ (COM (2009) 304, 29).