The applicability of the Swedish Ozone Regulation
(2002)Department of Law
- Abstract
- The aim of this thesis is to answer the question whether the Swedish Ozone Regulation still is applicable. Hereinafter called the Swedish Ozone Regulation. The reason for this question was a verdict from the Swedish Environmental Court of Appeal Translation of the Swedish Miljööverdomstolen. (The Swedish Court) stating that predominant reasons indicate that the Swedish Regulation no longer is possible to apply. Other institutions, like the County Administrative Board in Skåne did not quite agree with this statement. I have made an analysis of the Swedish Court´s statements about the applicability of the Swedish Ozone Regulation. First the relation between the Swedish Ozone Regulation and the old Community Regulation 3093/94 on ozone... (More)
- The aim of this thesis is to answer the question whether the Swedish Ozone Regulation still is applicable. Hereinafter called the Swedish Ozone Regulation. The reason for this question was a verdict from the Swedish Environmental Court of Appeal Translation of the Swedish Miljööverdomstolen. (The Swedish Court) stating that predominant reasons indicate that the Swedish Regulation no longer is possible to apply. Other institutions, like the County Administrative Board in Skåne did not quite agree with this statement. I have made an analysis of the Swedish Court´s statements about the applicability of the Swedish Ozone Regulation. First the relation between the Swedish Ozone Regulation and the old Community Regulation 3093/94 on ozone depleting substances was investigated. Hereinafter called the old Community Ozone Regulation. I found that the Swedish Ozone Regulation contained both stricter and divergent measures compared to the old Community Ozone Regulation. For a Member State to have stricter national rules compared to a Community Regulation based on Article 175 in the Treaty of Amsterdam the rules have to comply with the Treaty and be notified to the European Commission. I have come to the conclusion that the Swedish rules are compatible with the Treaty although they constitute an import restriction. The reason for this is that the rules can be exempted under the Rule of Reason because they are applied in order to protect the environment and they are necessary, proportional and non-discriminatory and have a non-economical purpose. The Swedish rules were also notified to the European Commission and the Commission has not yet started any proceedings against the Swedish rules, which could be interpreted as an approvement of the national rules. I have found that all the prerequisites for allowing stricter national rules in Article 176 are met. As mentioned above the Swedish rules were also divergent compared to the old Community Ozone Regulation. For divergent rules to be allowed they have to be compatible with the provisions in the Treaty, especially Article 28, which regulates the free movement of goods. As I stated before, the Swedish rules constitute an import restriction and are therefore prohibited according to Article 28. However, I have found that the Swedish rules can be exempted under the Rule of Reason and that makes them allowed and applicable in comparison with the old Community Ozone Regulation. Today the old Community Ozone Regulation has been replaced with a new Regulation, 2037/2000 Hereinafter called the new Community Ozone Regulation. on ozone depleting substances that regulates both substances and products. However the Swedish Ozone Regulation is still stricter than the new Community Ozone Regulation is on some areas. According to the Swedish Court already the fact that the old Community Ozone Regulation was replaced makes it difficult to apply the Swedish Regulation. The reason for this is that the Swedish Ozone Regulation was supposed to complement the old Community Ozone Regulation and this Regulation does not exist anymore. I have come to the conclusion that the reference in the Swedish Ozone Regulation could be interpreted as a reference to Community rules on the subject and not just to the one from 1994. The Swedish Court further argues that the Community Regulations direct applicability and the loyalty principle in Community law also makes it difficult to apply the Swedish Regulation. I am of the view that this does not render the Swedish Regulation non applicable since it is stated in an Article in the Treaty that it is allowed with stricter national rules under certain conditions if the Community Regulation is based on Article 175. According to my opinion Community law does not make the Swedish Ozone Regulation void or non-applicable. The Community Regulations were based on Article 175 and according to Article 176 it may be allowed with stricter national rules if they comply with the Treaty and are notified to the European Commission. The Swedish Ozone Regulation is according to my understanding compatible with the Treaty and has been notified to the European Commission and no infringement procedure against the Regulation has been taken by the Commission. The Regulation is therefore still possible to apply. (Less)
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- author
- Nevhage, Åse
- supervisor
- organization
- year
- 2002
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Miljörätt
- language
- English
- id
- 1560412
- date added to LUP
- 2010-03-08 15:55:26
- date last changed
- 2010-03-08 15:55:26
@misc{1560412,
abstract = {{The aim of this thesis is to answer the question whether the Swedish Ozone Regulation still is applicable. Hereinafter called the Swedish Ozone Regulation. The reason for this question was a verdict from the Swedish Environmental Court of Appeal Translation of the Swedish Miljööverdomstolen. (The Swedish Court) stating that predominant reasons indicate that the Swedish Regulation no longer is possible to apply. Other institutions, like the County Administrative Board in Skåne did not quite agree with this statement. I have made an analysis of the Swedish Court´s statements about the applicability of the Swedish Ozone Regulation. First the relation between the Swedish Ozone Regulation and the old Community Regulation 3093/94 on ozone depleting substances was investigated. Hereinafter called the old Community Ozone Regulation. I found that the Swedish Ozone Regulation contained both stricter and divergent measures compared to the old Community Ozone Regulation. For a Member State to have stricter national rules compared to a Community Regulation based on Article 175 in the Treaty of Amsterdam the rules have to comply with the Treaty and be notified to the European Commission. I have come to the conclusion that the Swedish rules are compatible with the Treaty although they constitute an import restriction. The reason for this is that the rules can be exempted under the Rule of Reason because they are applied in order to protect the environment and they are necessary, proportional and non-discriminatory and have a non-economical purpose. The Swedish rules were also notified to the European Commission and the Commission has not yet started any proceedings against the Swedish rules, which could be interpreted as an approvement of the national rules. I have found that all the prerequisites for allowing stricter national rules in Article 176 are met. As mentioned above the Swedish rules were also divergent compared to the old Community Ozone Regulation. For divergent rules to be allowed they have to be compatible with the provisions in the Treaty, especially Article 28, which regulates the free movement of goods. As I stated before, the Swedish rules constitute an import restriction and are therefore prohibited according to Article 28. However, I have found that the Swedish rules can be exempted under the Rule of Reason and that makes them allowed and applicable in comparison with the old Community Ozone Regulation. Today the old Community Ozone Regulation has been replaced with a new Regulation, 2037/2000 Hereinafter called the new Community Ozone Regulation. on ozone depleting substances that regulates both substances and products. However the Swedish Ozone Regulation is still stricter than the new Community Ozone Regulation is on some areas. According to the Swedish Court already the fact that the old Community Ozone Regulation was replaced makes it difficult to apply the Swedish Regulation. The reason for this is that the Swedish Ozone Regulation was supposed to complement the old Community Ozone Regulation and this Regulation does not exist anymore. I have come to the conclusion that the reference in the Swedish Ozone Regulation could be interpreted as a reference to Community rules on the subject and not just to the one from 1994. The Swedish Court further argues that the Community Regulations direct applicability and the loyalty principle in Community law also makes it difficult to apply the Swedish Regulation. I am of the view that this does not render the Swedish Regulation non applicable since it is stated in an Article in the Treaty that it is allowed with stricter national rules under certain conditions if the Community Regulation is based on Article 175. According to my opinion Community law does not make the Swedish Ozone Regulation void or non-applicable. The Community Regulations were based on Article 175 and according to Article 176 it may be allowed with stricter national rules if they comply with the Treaty and are notified to the European Commission. The Swedish Ozone Regulation is according to my understanding compatible with the Treaty and has been notified to the European Commission and no infringement procedure against the Regulation has been taken by the Commission. The Regulation is therefore still possible to apply.}},
author = {{Nevhage, Åse}},
language = {{eng}},
note = {{Student Paper}},
title = {{The applicability of the Swedish Ozone Regulation}},
year = {{2002}},
}