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Legal Problems Concerning the Implementation of EEC Environmental Directives Regarding Dangerous Substances and the Netherlands Chemical Substances Act

Published online by Cambridge University Press:  21 July 2009

Jan Jans
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Abstract

In many member states of the European Community legal problems arise when implementing EEC environmental directives, especially those regarding dangerous substances. It has been said that sometimes these problems are caused by the fact that it is not always clear to national legislators what amount of discretion is available to them. This hypothesis is investigated here, mainly in relation to the way the Netherlands Chemical Substances Act has transposed dangerous substances directives into Dutch national law.

Type
Leading Articles
Information
Leiden Journal of International Law , Volume 2 , Issue 1 , May 1989 , pp. 35 - 47
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1989

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References

1. Law No.245 of 5 March, GazetlaUfficiale 1451.

2. Directive No. 73/173/EEC; O J. 1973, L189/7.

3. Directive No. 77/728/EEC; O J. 1977, L303/23.

4. 148/78, Ratti, 1979 E.C.R. 1629.

5. The combined effect of Arts. 3–8 of Directive 73/173.

6. 80/76, Kolpinghuis, 8 October 1987 (not yet reported).

7. It may be that the new Art. 100A(4) EEC Treaty will bring about some changes in this respect.

8. Directive No. 79/831/EEC; OJ. 1979, L259/11, amending for the sixth time Directive No. 67/548/EEC on the approximation of the laws, and regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances.

9. E.g., 236/85, Commission v. The Netherlands, 13 October 1987 (not yet reported).

10. 29/84, Commission v. Federal Republic of Germany, 198S E.C.R. 1673.

11. 96/81, Commission v. The Netherlands, 1982 E.C.R. 1791.

12. In Dutch: Indicatief Meerjaren Programma (IMP).

13. 429/83, Commission v. Italy, 23 February 1988 (not yet reported).

14. Furthermore, it should be noted that the Italian government claimed that the extension of the exemption to importers was made after the statement of the Council, recorded in the minutes of the meeting at which the Directive was approved, which referred to the manufacturer or importer, in order to avoid discrimination between them. The Court rejected this plea and stated that it must be observed that an interpretation based on a statement of the Council cannot give rise to an interpretation different from that which results from the actual terms of the Directive.

15. The Court of Justice confirmed that differences in national environmental law can distort competition appreciably in its Judgment of 18 March 1980,92/79, Commission v. Italian Republic, 1980 E.C.R. 1115.

16. Considerations relating to competitors outside the EC can of course be of influence on the kind of action to be taken.

17. 278/85. Commission v. Kingdom of Denmark, 14 October 1987 (not yet reported).

18. The day the directive came into force

19. There exist directives regarding certain specific dangerous substances which do regulate the way in which they are to be used. For instance Directive No. 8S/467EEC (PCB/PCT); O J. 198S, L269/56 and Directive No. 85/610/EEC (Asbestos); O J. 1985, L375/1.

20. Rehbinder, , Stewart, , 1985, Environmental Protection Policy 95.Google Scholar

21. For instance a prohibition on the use of the substance in certain products. It is of course not allowed to violate the provisions of the Directive, for instance by demanding more or more detailed information than is provided for by the Directive.

22. The prohibition of qualitative restrictions and all measures having equivalent effect 8/74, Dassonville, 1974 E.C.R. 837.

23. 240/83, Procureur de la Republique v. Association de Defense des Bruleurs d/Huiles Usagees, 1985 E.C.R. 531. See also my annotation in 1986 Tijdschrift voor Milieu en Recht 155.

24. I am not primarily thinking of the Arts. 130 R-130 T which form the new legal base for Community action in the field of environment, but to Art 100A(4) of the EEC Treaty. In this new Article environmental protection has been given the same status as the Art 36 exemption clauses regarding the justification of national import and export restrictions. A very interesting question is whether this will also be the case outside the scope of Art 100A(4), for instance in the case of the application of Art 36 of the EEC Treaty itself.

25. This code can be found in 1986 Staatscourant, no. 2.

26. Directive No. 67/548/EEC; OJ. 1967, LI96/1 regarding the classification, packaging and labelling of dangerous substances.

27. Narjes: “If we really were to try and impose Community legislation unilaterally on third countries this would have numerous political and legal implications, as the autonomy and the principle of respect of the sovereign rights of these countries would thereby be affected, and these countries must and can make their own decisions concerning the safety and health of their citizens.”

28. Debates European Parliament, 1983–1984; OJ. 1983, Annex 1–304 at 240. Pallemaerts, M., Export Notifizierung: Der EG-Ansatz im internationalen Kontext, 1987 Europaische Umwelt 29. OJ. 1986, C177/5.Google Scholar

29. Some preliminary remarks on this subject are made in Jans, J., De Ruimtelijke Werldngssfeer van Wetgeving Betreffende Milieu-effectrapportage, 1984 Tijdschrift voor Milieu en Recht 265;Google Scholar and in Jans, J., GrensoverschrijdendMilieurecht 9–16 (1987).Google ScholarKoers., A. W.ParticipationoftheEuropeanEconomic Community in a New Law of the Sea Convention, 73 American Joumal of International Law 426 (1979). According to Koers the Community may exercise extra-territorial powers if the member states have (or had) such powers and if such powers fall ratione materiae within the scope of application of the EEC Treaty. He based his argument on a Judgment of the Court of Justice of 14 July 1976; 6/76, Kramer, 1976 E.C.R. 1279.Google Scholar

30. Regulation No. 1734/88 of 16 June 1988; O J. 1988, L155/2. See also the Council's Resolution on the same matter of 16 June 1988; 0 J. 1988, C170/1.

31. See supra note 26.

32. Kramer, L., The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law, 1987 Common Market Law Review 659, 665.Google Scholar

33. Id., However, he did not discuss the limits set by international law regarding the application of extraterritorial community powers. See also supra note 31.

34. See, supra, note 30. In its preamble the Commission stated that it is necessary to apply uniform community procedures to the export of chemical substances! These questions are not only of theoretical or academic interest The case law of the Court makes it clear that the use of incorrect legal grounds can affect the legality or validity of the action in question.

35. 41/76, Donckerwolcke, 1976 E.C.R. 1921.

36. Draft Bill Tazelaar/Herfkens regarding the export of certain pesticides to developing countries. Bijlage Handelingen Tweede Kamer, zittingsjaar 1985–1986, at 19356.

37. This raises the question of whether the EEC Treaty, and in particular Art 36, provides for legal grounds to justify national qualitative restrictions and all measures having equivalent effect (Art 30) not for the protection of their own environment, but for that of other states, even non-member states. See on this matter my annotation in 198S Tijdschrift voor Milieu en Recht 86.