Abstract
The theoretical framework for legal risk analysis is still in a rather preliminary state, but uncertainty may be called a prominent aspect in the definition of legal risk. Environmental law tends to be characterised by many uncertainties due to the nature of the environment as well as to its relative newness and its often innovative aspects. Two examples from European environmental law, where serious factual as well as legal uncertainty can be observed, are discussed in terms of legal risk analysis. The results for both the EU law on waste management and the legal norms for the exposure of PM 2.5 in the EU law on ambient air quality are evaluated as positive. This judgment, however, is qualified as ‘cautiously’ positive due to the less than fully elaborated theoretical state of legal risk analysis.
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Notes
- 1.
Basel Committee on Banking Supervision, International Convergence of Capital Measurement and Capital Standards, BIS 2006, fn. 97, at p. 144; the definition of ‘legal risk has disappeared from the Basel Committee on Banking Supervision,’ Core Principles for Effective Banking Supervision, BIS 2012, although the definition of ‘operational risk’, Principle 25 of the Principles, has been maintained including the reference to legal risks—see the text—in fn. 79 at p. 58.
- 2.
Operational risk has been the subject of many discussions and arguments in the banking world. See for a useful overview, Moscadelli (2004); or Basel Committee on Banking Supervision, Core Principles for Effective Banking Supervision-Consultative Document, BIS 2012, Basel, in particular, Principle 15, Risk Management Process, and 25, Operational Risk, pp. 40–44.
- 3.
Mahler (2007), pp. 10–31.
- 4.
Hart (1994).
- 5.
Mahler (2007), p. 10.
- 6.
Here he refers to Knight 1921: Houghton Mifflin. As a point of departure for the present paper, Mahler proposes to use the following ISO definition of risk, which is representative for the use of the term in risk management: Risk is the combination of the probability of an event and its consequences (ISO, Risk management – vocabulary – guidelines for use in standard; Geneva, 2002, ISO, definition 3.1.1).
- 7.
Mahler (2007), p. 18.
- 8.
Mahler (2007), p. 20.
- 9.
Mahler (2007), p. 28.
- 10.
Art. 4 of the 2008 Framework Directive formulate the waste hierarchy as: The prevention of waste production; preparation for re-use; re-cycling; other means of recovery, such as energy recovery; disposal. Art. 4.2 allows for certain waste streams a departure from the order if that leads to better environmental outcomes (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). This section liberally makes use of my ‘Waste Management in EU legislation-an Introduction’, chapter I of Panoussis and Post 2014.
- 11.
SEC(89) 934 and the new Strategy presented by the Commission in 1996, COM(96) 399; see also the Council’s Resolution of 24 February 1997 on a Community Strategy for Waste Management, OJ 1997 C 76/1.
- 12.
Telling is, perhaps, the reported amazement of an experienced judge of the European Court of Justice about the judicial effort put into defining the concept of waste. Tieman (2003), pp. 5 et seq. Tieman’s book by itself provides ample illustration of Judge Kapteyn’s finding.
- 13.
Case C-129/96, Inter-Environnement Wallonie ASBL v. Waals Gewest [1997] ECR I-7411.
- 14.
Cf. Cases C-1114/01, Avesta Polarit Chrome [2003] ECR I-8725 and C-235/02, Saetti [2004] ECR I-1005.
- 15.
Again see Case C-9/00, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533 and Case C-444/00, Mayer Parry [2003] ECR I-6163.
- 16.
Case C-228/00, Commission v. Germany [2003] ECR I-1439. Waste to energy processes are still very much in a state of technological development.
- 17.
This apart from other problems observed like the so-called ‘Legal waste paradox’. See Raccah (2014), fn. 8, see, in particular Chapter 6, Section 6.2, ‘Main reasons of the problems faced by the EU Waste Law’, pp. 87 et seq.
- 18.
Directive 2008/50/EC on ambient air quality and cleaner air for Europe, 11 June 2008, OJ EU L 152/1. In this section I amply draw on my ‘The Future of Ambient Air Management; concluding remarks’; in Post (2009), pp. 135–147.
- 19.
Explanatory Memorandum to the Proposal for a Directive of the European Parliament and of the Council on ambient air quality and cleaner air for Europe of 21 September 2005, SEC(2005)1133.
- 20.
Id.
- 21.
Directive 2008/50/EC on ambient air quality and cleaner air for Europe, see, op.cit., fn. 3. Its predecessor, the 1996 Framework Directive 62/96/EC says in its second preamble less specifically: “Whereas, in order to protect the environment as a whole and human health, concentrations of harmful air pollutants should be avoided, prevented or reduced […]”.
- 22.
Thematic Strategy on Air Pollution, COM (2005) 446, Communication of 21 September 2005 from the Commission to the Council and the European Parliament.
- 23.
Not to mention possible other harmful effects, see, e.g., the American Lung Association 2005 Research Highlights: Health Effects of Particulate Matter and Ozone Air Pollution, January 2006, reporting on studies conducted in 9 Californian Counties and in 22 European cities.
- 24.
Eutrophication is defined as excess nutrient nitrogen (in the form of ammonia and nitrogen oxides) which disrupts plant communities, and leaches into fresh waters, leading in each case to a loss of biodiversity, in COM(2005) 446, Communication of 21 September 2005 from the Commission to the Council and the European Parliament – Thematic Strategy on Air Pollution, 2005.
- 25.
Id.
- 26.
2008 Directive, Preamble (11).
- 27.
The measures will by 2020 lead to an expected reduction of about 10 % of premature deaths due to ozone.
- 28.
See, e.g., Orlando (2009), pp. 35–37.
- 29.
See COM (2005) 446.
- 30.
Which nevertheless in view of the use of ‘limit values’ and ‘alert thresholds’ may lead to effective action in court along the way of the German TA Luft cases (Case C-361/88, Commission v. Germany, 1991 ECR 1-2567, paras. 28, 29).
- 31.
What will be the future of the Ambient Air Legislation, including the Framework Directive is uncertain. The ‘Clean Air Package’ that contained more severe emission limits for the decade following 2020 was originally put on the ‘kill list’ of the new European Commission. Eventually, it has been decided to modify it. The results will be published in the course of 2015.
References
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Tieman J (2003) Naar een nuttige toepassing van het begrip afvalstof: over de betekenis en toepassing van kernbegrippen van international, Europees en Nederlands afvalstoffenrecht, (Towards a Useful Application of the Concept of Waste: on the Meaning and Application of Core Concepts of International, European and Dutch Waste Law) Kluwer, Deventer, The Netherlands
Acknowledgments
I wish to thank Professor Ige F. Dekker for his valuable comments and suggestions.
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Post, H.H.G. (2016). Legal Risks in European Environmental Law and Policy. In: Mišćenić, E., Raccah, A. (eds) Legal Risks in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-28596-2_11
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