Environmental law is a comprehensive and rapidly developing set of various norms having an essential impact on our world. That is one of the reasons why the contents of such regulations have to be constantly reviewed, made more specific and reinterpreted. The Court of Justice of the EU has issued two essential judgements in this respect. In the first, the court addresses the obligation to examine the availability of safe alternatives before dangerous chemicals are put on the market. In the second, it lays out the conditions under which public authorities have to disclose their internal environmental communications. The European Commission did not lag behind and issued guidelines on environmental damage. This should make enforcement of rectification easier and more unified.
CJEU restricts unfounded use of chemicals of high concern
The CJEU decided to restrict the use of chemicals of high concern, specifically lead. The legislation allows its use only if no less harmful alternative is available and if the benefits outweigh the harmful effects. It is up to the applicant for the authorisation to prove the unavailability of more suitable alternatives, and up to the European Commission to sufficiently verify this fact. The CJEU’s judgement disrupted the current practice by stating that the decision cannot be based solely on assumptions that have not been confirmed or overturned by factual information. Therefore, the Commission always has to carefully examine whether alternatives are available. The use of chemicals of high concern will therefore be subject to a much higher level of examination in the future.
Role of public interest in the disclosure of internal environmental communications
In judgment C‑619/19, the CJEU addressed the right of the public to environmental information in line with the Aarhus Convention. The subject of the preliminary ruling was the interpretation of the term “internal communications”, which is exempt from the aforementioned disclosure requirement. However, this exception always has to be weighed against the public interest, which is a condition for the disclosure.
The court has concluded that internal communications include any information circulating within a public authority that has not left the internal sphere of this authority as of the date of filing the request. It also includes information received by this authority that has not or should not have been disclosed to the public before their receipt.
The applicability of this exception is not limited in terms of time; however, the reason for its existence is to provide public authorities with protected space for engaging in reflection and pursuing internal discussions. The exception can therefore apply only for the period of time when the protection of the required information is justified. As time goes on, the public interest in the disclosure of internal environmental communications may outweigh the interest of public authorities in protecting them. Such a situation has to be materially examined by the relevant authority and the authority cannot simply make a formal reference to the internal communications being covered by the exception.
Unification of the term “environmental damage” across the European Union
The European Commission has published guidelines clarifying the scope of the term “environmental damage” as defined in Article 2 of the Environmental Liability Directive. The purpose is to help EU states to better assess whether damage to water, protected species, land or natural habitats falls within the scope of the Directive. The term “environmental damage” is, according to the Commission, a cross-cutting instrument closely related to several subject-areas within the scope of other directives (e.g. the Conservation of Wild Birds Directive, the Water Directive or the Habitats Directive, etc.). The guidelines therefore provide a detailed explanation of how to interpret this term, what circumstances should be taken into account when making the evaluation, how to assess adverse effects and what their reference values are, how damage should be assessed and how to determine its significance. The member states thus gain an instrument that should help them properly penalise the originators of the damage and which should ensure the same approach to this kind of damage across the European Union.