The Polluter Pays Principle in EU Climate Law: an Effective Tool before the Courts?

Abstract

In EU law the polluter pays principle (ppp) enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (tfeu) enshrines it among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the ppp in EU law, in the case law of the Court of Justice of the European Union (cjeu) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the ppp has been most influential to date: first, cases concerning the EU ets and emissions; second, cases concerning EU energy law; and third, cases concerning EU state-aid law. The conclusion reflects on the potential role of the ppp in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.

Identifying European Union Countries’ Cooperation in Reducing Carbon Emissions

“…In order for these policies to be effective they need support: financial incentives such as tax breaks or subsidies must be offered where appropriate so that businesses are encouraged into adopting them voluntarily rather than having them forced upon them through regulation or legislation. This is where carbon markets come into play: they allow governments around the world including those with no national carbon pricean efficient way of providing financial incentives for lowcarbon technologies without having to make direct outlays themselves [6]. By allowing companies who produce low-carbon goods or services access to credits based on how much CO 2 they emit when producing them, governments can encourage industries towards greater efficiency without needing massive upfront investments in technology development.…”

The Polluter Pays Principle Within the Framework of the European Union Emissions Trading System

“…Secondly, member states also have to abide by the principle. In fact, this principle does not only impose a political principle, but also a legally binding principle, which obliges member states to enforce the principle when acting in the environmental field (Kingston, 2020;Bleeker, 2009;De Saadeler, 2002;Cardwell, 2006). However, the fact that the principles of European Union environmental policy and law are included in the general and abstract arrangements in TFEU, as a rule, lacks the ability to be applicable in the Member States.…”

“…As a matter of fact, a significant number of legislative arrangements such as waste management directives adopted at the union level have provided help for clarified scope and status of polluter pay principle at Article 191(2) and to guide the institutions implementing them (Güneş, 2011: 110 ). Without a doubt, the promotion of the polluter pay principle into primary legislation and secondary legislation has been constitutional innovation, specifically making it legally binding under the TFEU (Kingston, 2020: Bleeker, 2009De Sadeleer, 2002;Güneş, 2011). In spite of this, there are still many problems as a full implementation at the EU level.…”

“…This directive was revised in 2009 and amended by the directive 2009/29/EC. With the said directive, it was concluded that the ETS represents the best way to achieve the objectives based on the polluter pays principle, which is the basis of the EU's environment and climate change policies (Kingston, 2020;Nils, 2009;Khan, 2015). Because, this system, which is based on the purchase and sale of the right to pollution, provides the users of environmental resources to pay a price as a financial tool, and provides both the control of some toxic gases and the formation of processes that will prevent the disruption of economic processes.…”

“…In this context, it has been decided to distribute allowances, approve emission offsets, monitor and report emissions appropriately by a regulatory authority in accordance with the emissions covered by the carbon trade control, the Commission's directive on the supervision and reporting of greenhouse gases (Ghaleigh, 2013: 66). Accordingly, for each trade phase at EU level, the Commission sets emission reduction percentages before the trade periods begin (Kingston, 2020;Delbeke,2006;Ghaleigh, 2009;Heindl and Löschel, 2012).…”