In April 2004, Directive 2004/35 was promulgated establishing a framework for environmental liability based on the polluter-pays principle, with a view to preventing and remedying environmental damage. The Directive is the result of a long discussion on the usefulness of civil liability as a means for allocating the responsibility of environmental costs, on the various options to be taken into consideration, and on the various legislative systems that were analysed in order to have a comparative law perspective. After more than ten years of its coming into force, its history and its evolution need to be considered taking the various initiatives introduced at EU level into account, as well as the different national legal backgrounds in which it has been implemented. The comparative law analysis carried out in the chapter shows that significant divergent solutions exist at the national level. As a consequence, it is concluded that harmonization is still to be achieved in this area of environmental law.
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Chapter 4 surveys several ethical theories: (1) actions good in themselves; (2) ‘consequentialism’, that is, actions good in relation to their outcomes, with particular attention being given to ‘utilitarianism’, which seeks the greatest happiness of the greatest number; (3) Aristotle’s ‘good life’, or virtue ethics; (4) ethics based on the incommensurability of unique human beings; and (5) foundationalist ethics based on a gift relationship. As the different theories are discussed, both current tax and benefits systems and Citizen’s Basic Income are evaluated in relation to them. Conclusions are drawn, and in particular the conclusion that larger countries tend to deliver ‘broad brush’ approaches to Citizen’s Basic Income, whereas in smaller countries the study of administrative detail is more in evidence. The chapter closes with case studies on the ideas of ‘freedom’ and ‘justice as fairness’.
Kendro Pedrosa and Bernard Vanheusden
Air pollution is a hot topic within the EU. It is a considerable problem, in particular in urban agglomerations. Since the 1970s the applicable legal framework has gone through several changes, but still does not seem to significantly reduce the level of air pollution. This chapter first describes the link between EU air quality legislation and the Convention on Long-range Transboundary Air Pollution. Next, it provides an overview of EU air legislation. In summary, the EU tackles air pollution with three types of legislation: (1) ambient air quality standards (limit values for concentrations of pollutants); (2) national emission ceilings; and (3) standards for specific sources of air pollution. Finally, the most important case law is discussed. Although the EU air pollution legislation seems to offer a logic and comprehensive framework, it lacks ambition compared to the World Health Organisation guidelines and it is confronted with poor implementation in the Member States.
The EU climate and energy framework for 2030 commits the EU and its Member States to a binding target of at least a 40 per cent domestic reduction in GHG emissions by 2030 compared to 1990. Together with the EU ETS Directive, the Effort Sharing and LULUCF Regulations form the essence of the policy through which the EU aims to meet its climate target and comply with the commitments under the Paris Agreement. The two Regulations create an explicit regulatory framework for the Member States to design and implement national climate measures. However, their success depends ultimately upon how ambitiously the Member States employ the discretion this framework allows them. Moreover, because the Regulations are tightly interwoven with progress at international level in the context of the Paris Agreement, they most likely will have to be reviewed and revised as the international climate regime advances.
Stefan E. Weishaar
The European Union Emissions Trading System (EU ETS) is one of the core pillars of the EU climate change regulatory framework. It was introduced in 2005 and covers around 45 per cent of the EU’s GHG emissions from stationary sources and aviation. It commenced with an official ‘learning by doing phase’ that was initially intended to ensure the necessary data quality that is a prerequisite for any Emissions Trading System to operate properly. Over time its rules have become ever more complex and detailed. Moreover, decisive features of the system were altered. This chapter tracks relevant changes of the EU ETS and seeks to examine what role the Court of Justice of the European Union has played in shaping the current system.
The core EU nature conservation law consists of the Birds Directive and the Habitats Directive. Both Directives are important tools in the realization of the EU Environment Action Programme and the EU Biodiversity Strategy. The overall goal of the Directives is to reach a favourable conservation status for the habitats and species protected under the Directives. The Directives establish an ecological network of protected areas, the Natura 2000 network, in which Member States have to take special protection measures, avoid deterioration and conduct an assessment for plans and projects. Both Directives also include strict species protection provisions. The European Court of Justice plays an important role in the interpretation of the Directives. In spite of the legal soundness of the Directives, many species and habitats are in an unfavourable conservation status. A substantial increase in national measures for implementing the Directives is required to protect and restore biodiversity in Europe.
Andrew Johnston and Beate Sjåfjell
Achieving sustainability requires that business not only complies with environmental law, but also that business goes beyond that which is expressly regulated by environmental law. This chapter examines regulatory approaches that seek to integrate environmental sustainability into the decision-making of business. In canvassing the EU’s main policy and legislative initiatives, we find strong reliance on various forms of disclosure, insufficient to mitigate the destructive social norm of shareholder primacy. This Anglo-American, law-and-economics inspired concept is not rooted in EU law but has spread and gradually colonised the discretionary space that European company law gives corporate decision-makers to decide on how to best run the companies. The result is a prioritisation of short-term maximisation of shareholder returns. A fundamental shift towards coherent and more stringent regulation is needed to mitigate shareholder primacy and realise the potential of European business to contribute to sustainability.
Antonio Cardesa-Salzmann and Elisa Morgera
This chapter focuses on the external dimension of EU environmental law and discusses the main developments that the Lisbon Treaty brought in this particular area, in the light of the practice of the EU institutions and the Member States, as well as the case law of the Court of Justice of the European Union (CJEU). Accordingly, we will first sketch out the competence and legal bases for EU external environmental action. Against this backdrop, we will look into how the EU has implemented the mandate of environmental integration, in order to ensure the consistency of its external environmental policy with other areas of EU external action, such as in particular the Common Commercial Policy (CCP). Finally, we will assess how the EU participates in international environmental negotiations. The chapter concludes with an evaluation of the EU´s track record as a global actor in international environmental governance.
Cross-border transfers may prevent states from taxing the economic value of capital gains created in their territories. Exit taxes such as those introduced by Article 5 ATAD aim at compensating this loss of tax revenue by taxing latent capital gains at the time a taxpayer relocates its residence, assets or businesses cross-border. Although such measures were not foreseen by the OECD BEPS Action Plan, they existed in different forms in many Member States, and had been subject to a significant body of CJEU case law setting limits to their compatibility with the EU fundamental freedoms. That case law, together with the step-up mechanism provided by the Directive, ensure that the disruptive impact of exit taxation on intra-EU transfers ought to remain limited.
Joan-Lluís Capelleras, Alex Rialp and Josep Rialp
This chapter investigates the effects of exporting and technological collaboration on small and medium-sized enterprise (SME) growth. Our approach is to consider four different situations: firms that neither export nor collaborate, firms that only export, firms that only collaborate, and firms that both export and collaborate. We argue that those SMEs that combine both strategies at the same time will grow faster because they will have access to key resources through leveraging their external relationships and foreign market expansion. A firm-level panel of data that covers a representative sample of Spanish manufacturing SMEs is used. Results show that firms involved only in export activities are more likely to have stronger sales growth outcomes. We also find that participating only in technological cooperation agreements does not necessarily favor growth. However, SMEs that are simultaneously engaged in both exporting and technological collaboration achieve higher sales and employment growth. Relevant implications are derived from these findings.