: The multi-faceted scenario of enforcement of EU environmental law: enforcement on Member States and sanctions for non-fulfilment of the obligation to implement EU environmental directives
As noted earlier, at EU level a remarkable amount of legislation on the environment has been adopted. The key challenge is thus to enforce existing rules and standards, and the EU legal system is apparently provided with more adequate tools to serve this purpose than both domestic and international law.
On the one hand, and firstly, EU law enjoys a wider geographic scope of application than national legislation; secondly, and more importantly, EU law has a much stronger means of enforcement compared with international law. These elements lead to enhanced compliance by both Member States and individuals: the former permits the adoption and implementation of much more ambitious goals than could be imagined by a single Member State while the latter actually allows these goals to be pursued.
As far as enforcement against Member States is concerned, both public enforcement through infringement procedures, and - at least prospectively - private enforcement through damages actions brought by individuals against Member States are available.
On the other hand, enforcement on individuals occurs through (i) the environmental liability directive (ELD) as well as other directives requiring Member States to introduce specific liability for individuals who infringe the relevant EU environmental rules and standards, and (ii) the ECD.
I shall now examine the 'public enforcement’ side in relation to Member States that do not comply with their duty to implement and apply the EU's environmental rules.
This area involves the general remedy established by the Treaties if a Member State fails to fulfil its obligations under EU law, i.e. the infringement procedure set out by Articles 258-260 TFEU.
More precisely, with regard to sanctions, when the Commission refers Member States to the CJEU for having infringed EU law, the Court may impose financial sanctions if the Member State in question has (i) not yet complied with an earlier judgment ruling on the infringement; or (ii) failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure. According to the latest version of Article 260(3), second paragraph, the sanction may encompass both a lump sum payment, to punish the existence of the infringement itself, and/or a daily penalty payment, to deter any continuation of the infringement after the CJEU judgment.
The CJEU case-law has shaped the general regime set out by the treaty provision mentioned above. In particular, in order to establish some level of certainty, the CJEU has clarified that:
the basic criteria which must be taken into consideration in order to ensure that that payment has coercive effect and that EU law is applied uniformly and effectively are, in principle, the seriousness of the infringement, its duration and the ability to pay of the Member State in question. In applying those criteria, regard must be had, in particular, to the effects on public and private interests of the failure to comply and to how urgent it is for the Member State concerned to be induced to fulfil its obligations.
Moreover, the sanctions should reflect the 'degree of persuasion needed in order for the Member State which has failed to comply with a judgment establishing a breach of obligations to alter its conduct and bring to an end the infringement established’ and, as far as the penalty payment is concerned, it should be set 'so that it is both appropriate to the circumstances and proportionate to the infringement established and the ability to pay of the Member State’. The CJEU enjoys broad discretion in establishing the amount of the lump sum payment: the relevant factors considered by the Court consist of the need to dissuade the Member State involved from repeating similar infringements in future, the appropriateness of the payment to the circumstances, its proportionality to the infringement, the seriousness of the infringement and the length of time for which the infringement continued after the judgment establishing it was delivered. Based upon this reasoning, the CJEU rejected the 'N’ factor which had rigidly been established by the Commission to establish ex ante the amount of penalty' payments, and the Commission subsequently adopted new criteria to allow for a foreseeable calculation of the penalties.
Moving from general to specific, the available statistics show that 333 infringement procedures were pending before DG ENV at the end of 2018, 53 of which involved the application of Article 260 TFEU. This figure is high and reveals the close attention paid by the Commission in its role of watchdog concerning compliance with EU environmental law. Those same statistics reveal further elements, i.e. that the 2018 figures are significantly lower than those of previous years (e.g. in 2007-2008 an average of 480 procedures was pending); this implies that - against a clear delay at national level in enforcing EU environmental instruments - substantial work has been done to improve compliance.
Sanctions in environmental infringement procedures also have a remarkably longstanding track record: their initial application dates back almost 30 years, when the CJEU ordered Greece to pay a penalty of €20,000 for each day of delay in implementing measures that had been demanded in a previous judgment on waste and toxic waste. In addition, the first case in which both a penalty payment and a lump sum were applied simultaneously also involved the environment, namely in an infringement procedure against France on fisheries conservation.
Sanctions have been used intensively to secure deterrence and compliance against a failure to adopt the necessary measures to comply with previous CJEU judgments that had ascertained a breach of environmental directives. Member States have been sanctioned, inter alia, for failing in their obligations to implement properly (a) Directives 75/442/EEC, 91/689/EEC and 1999/31/EC on waste management; (b) Directive 1999/31/EC on existing landfill sites and failure to close a landfill site operating without a site-conditioning plan; (c) Directive 2008/1/EC on integrated pollution prevention and control; Directive 91/271/EEC on urban waste-water treatment.
The frequency of infringement procedures in this subject matter and the Court’s severity in applying sanctions have generally prevented Member States from falling foul of their obligations to adopt the relevant EU environmental standards, thereby also avoiding any regulatory competition between Member States based upon their national laws.
Indeed, there is no doubt that, with powers being granted to the EC (and now the EU) in this subject matter, the adoption of environmental rules or programmes at EU level has generally been coupled with a strong enforcement policy in order to secure their implementation by the Member States. As this approach is also likely to be maintained (and possibly strengthened) in future, it may be the case that a strict enforcement stance - with adequate sanctions - will also characterise the implemenration of the EU's ambitious policies following the Paris Climate Agreement, which are likely to affect substantially the application of Directive 2008/50/EC:291 refer to the ‘2020 Climate & Energy Package’, as confirmed by the Europe 2020 Strategy, aiming at reducing GHG emissions by 23% on the 2016 figures; the ‘2030 Climate & Energy Framework’, and the ‘2050 Low-Carbon Roadmap’.
This is all confirmed by the fact that these initiatives are strengthened by an enforcement strategy under Article 260 TFEU, the aim of which is to sanction those Member States that fail to control their levels of air pollution, thus infringing Directive 2008/50/EC on ambient air quality and cleaner air for Europe: infringement cases are ongoing against Austria, Belgium, Czech Republic, Denmark, France, Germany, Hungary,31 Italy, Poland, Portugal, Spain, and Romania.32