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Analysis

EU law enforcement shake-up on the cards

As European commission prepares to propose changing how it enforces EU laws, Charlie Dunmore asks a group of experts what this could – and should – mean for environmental legislation
Brussels is most famous as the place where new European laws are made. Less appreciated is its role in checking on how these laws are applied across the EU, and taking enforcement action where there are breaches.
The European commission is constantly being alerted to possible breaches of EU rules, nowhere more so than in the environmental sphere.
According to the most recent EU statistics, 685 of the 3,250 open infringement procedures in 2006 were for suspected breaches of environmental legislation. At over 20 per cent of the total number of open cases, this eclipses the next most litigious sector, the internal market.
In part, the figures reflect the number of environmental laws on the EU’s statute books. Others point to the wealth of cases as evidence that existing infringement procedures are not fit for purpose.
Either way, the high level of environmental infringements activity has real-world consequences for European business. Varying implementation of EU rules by member states can lead to market access barriers. And with infringement procedures often dragging on for years – sometimes even decades – there is often prolonged uncertainty.

NEW DIRECTIONS
The commission is currently drafting a policy paper setting out new priorities for the implementation of EU environmental law in the coming decade. Its proposals should be presented by the end of the year.
Early indications suggest it will recommend prioritising cases based on sector-by-sector assessments of their potential environmental impact.
ENDS spoke to several expert observers, asking them to assess the current infringement procedure, identify weaknesses and suggest what the commission should do to improve implementation of EU green rules.
The commission tries to resolve cases before launching formal proceedings. It recently claimed that 70 per cent of cases are closed before a letter of formal notice is sent (see figure). Once put on notice of court proceedings, governments often act, leading to another 15 per cent of cases being resolved before a reasoned opinion is sent. A further 8 per cent are closed before an application to the court.
One criticism levelled by legal experts is that these procedures take too long. The commission recently revealed that cases resolved after a reasoned opinion but before referral to the court take on average 50 months to process.
PRIORITISATION
One option apparently favoured by the commission is to prioritise cases involving the most serious legal breaches. John Hontelez, secretary general of the European Environmental Bureau (EEB), agrees that prioritisation can play a role, particularly in cases threatening irreversible environmental damage.
“But you can’t just ignore the more ‘local’ problems, so the issue is really about a lack of capacity”, he says. Mr Hontelez accuses the management of DG Environment of “not fighting hard enough for more staff and resources”, particularly after the enlargement of the EU to 27 member states.
Wyba Douma, head of the European law department at the TMC Asser Institute in the Netherlands, believes the commission should prioritise cases of non-conformity and bad application of EU rules. When it comes to late transposition, he explains, member states normally can count on having an extra year or two to adopt legislation before the case reaches the European Court of Justice.
“But for substantive issues like non-enforcement, it’s important to bring cases to the court more quickly.” He describes the prospect of court-imposed fines as a “strong medicine against persistent infringements”. But he points out that since it became possible for the ECJ to levy fines, penalties have only been applied on three occasions.
Richard Macrory, professor of environmental law at University College London, agrees that priority should be placed on pursuing cases of non-enforcement in practice, but he worries the commission will propose the opposite approach in its upcoming policy paper.
He argues the EU’s recent constitutional woes have led to a loss of confidence in the community.
“I fear this could lead the commission to take a more softly-softly approach,” he says.
Professor Macrory also advocates the commission taking a more proactive approach to identifying possible infringements. “Instead of always reacting to external complaints, the commission should decide on its own priorities more.”
He says it should work with the European Environment Agency to determine priorities from an environmental perspective and issue “calls for complaints” in specific areas.

MORE TRANSPARENCY
One common complaint is a lack of transparency in the current system. Without any formal inspection powers of its own, the commission has long relied on citizens and NGOs to act as its ‘eyes and ears’.
According to the EEB’s John Hontelez, complainants receive a letter of acknowledgement from the commission “then that’s it”.
He says the commission deals directly with the member state authorities and the complainant isn’t given a further chance to help the commission with its investigation.
The commission argues it is bound by the treaties to maintain confidentiality in its dealings with national authorities, but Wyba Douma says this argument is far from proven.
Dr Douma also points out that the commission has total discretion to decide which complaints should be followed up. “They should make it clear exactly which complaints they are investigating and which they aren’t, and explain their reasons. It would give people more confidence that the commission is representing the interests of citizens, rather than the member states,” he says.
He adds that some form of independent watchdog with the power to challenge cases where the commission decides against further action is needed.

OTHER ACTORS
While the commission is ultimately responsible for ensuring the correct application of EU environmental rules, other actors and institutions must also bear some of the burden.
If there is a concern over a lack of resources within DG Environment, it is one applying equally to many member states.
“The first thing that needs to happen is for every member state to have sufficient capacity to implement EU environmental law,” says John Hontelez.
Full implementation of the Århus directives on environmental governance is another prerequisite, he adds. If more complaints are resolved at national level, the commission can adopt a more strategic approach to enforcement.
Professor Macrory says the European parliament and council should also play a bigger role in reviewing implementation. “They occasionally get interested, but they never follow up on a systematic basis,” he argues.
Caroline Jackson, the former chair of the parliament’s environment committee, has long been urging colleagues to check that the laws they help draft are being applied in practice. “As parliamentarians we make very good midwives, but terrible mothers,” she once said.
The main concern of the observers ENDS spoke to is that legitimate complaints about the complexity of environmental legislation and shortage of national and EU resources are being used to mask a lack of political will to pursue full enforcement.
The content of the commission’s forthcoming policy paper will give a clear indication of whether that concern is justified.

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