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: Interim measures and sanctions to protect the environment

Within the ample toolbox provided by the infringement procedure,33 interim measures to ensure rapid compliance are one of the most crucial instruments. For some time, the CJEU has clarified that, in the above procedure, it has the power to prescribe any such measure that it considers necessary to preserve the effet utile of the final decision issued under art. 260 TFEU.

Needless to say, interim measures are particularly relevant in infringement cases concerning environmental law, also in specific application of the precautionary and preventive action principles, so as to avoid irreparable damage being caused to the environment.34

Interim measures would, however, be futile in the absence of sanctions against Member States that were unwilling to apply them. Hence, in a major environmental case, the Court imposed sanctions against Poland in an infringement procedure for its alleged failure to comply with the Habitat and Wild Bird Directives,55 for which interim measures had simultaneously been adopted. Responding to the Member State concerned, the Court clarified that

the prospect of a periodic penalty payment being imposed in such a situation encourages the relevant Member State to comply with the interim measures ordered, it enhances the effectiveness of those measures and guarantees the full effectiveness of the final decision, thus falling entirely within the ambit of the objective of Article 279 TFEU.36

Conclusively, it can be said that, with regard to enforcement and sanctions on Member States for their failure to comply with obligations stemming from EU environmental rules, the picture seems quite clear and satisfactory, as deterrence is established and the criteria for assessing the amount of sanctions also respect the general principles of law as clarified by the CJEU.

: Damages actions by individuals against Member States for breach of EU environmental law?

In antitrust jargon, the situation described above would be classified as 'public enforcement’ of EU environmental law. It is interesting to consider whether, as in competition law, it may also be possible for there to be 'private enforcement’, i.e. if, under the Francovich doctrine,3' individuals can claim compensation from Member States for damages suffered as a consequence of their failure to comply with EU environmental law38.

While the answer, in principle, is a resounding “yes”, to my knowledge there is no evidence of this sort of enforcement having taken place yet. One reason for this may be the difficulty in itself of establishing a causal link between damage occurring to an individual and the breach of EU environmental law by a Member State: the very nature of the environment - i.e. a 'good’ which is common to all - makes the [1]

apportionment of individual environmental rights infrequent, with the ascertainment of any breach of such rights being similarly rare.

However, in general, this possibility cannot be ruled out: after all, the European Court of Human Rights has assessed that, under certain conditions, a group of citizens who had suffered damages due to the failure of their State adequately to apply and enforce rules on waste could validly claim a right to damages.59 These rules are clearly of EU origin, stemming from the relevant directives on waste.

The point I would like to make in this paragraph is that, unlike any other legal system, at EU level, lawsuits may be brought (either individually or collectively) to claim damages from Member States found to be in breach of the relevant EU environmental rules. Like the antitrust regime, it is also possible to imagine (and foresee) follow-on cases after a Tribunal or a CJEU judgement as a result of a decision by the Commission establishing that a Member State has infringed EU environmental law under Article 258 TFEU.

From this additional 'bottom up’ approach, the combination of infringement procedures and the Francovich doctrine can provide further deterrence for the stricter enforcement of EU environmental law, coupled with ‘sanctions’ that, even if disguised as damages claims, would provide additional weaponry for stronger protection and promotion of our environment. Although, legally speaking, damages actions are different from 'sanctions’, it goes without saying that, for the Member State concerned, they have the same deterrent impact and negative economic effect.

In this vein, the growing importance of class actions and of general actions for damages having a 'widespread nature’ in modern legal systems, as advocated, in particular, by ‘classical’ scholars engaged in economic analyses of law,[2] may serve not only the need to safeguard the 'rights’ of claimants, but may eventually also have positive global effects on the quality of our environment.

  • [1] ’’Respectively, Directive 92/43/EEC (OJ 1992, L 206/7) and Directive 2009/147/ EC (OJ 2010 L 20/7), both amended by Directive 2013/17/EU (OJ 2013 L 158/193). ,6C-441/17 R, Commission v Poland, ECLI:EU:C:2017:877, para 105. See P. Wenneras, 'Saving a Forest and the Rule of Law: Commission v. Poland’ (2019) 56 Common Market Law Review 541. 2 C-6/90 and C-9/90, Prancovich and Bonifaci v Italy, ECLI:EU:C:1991:428. ,s On this topic, see P. Wenneras, 'State Liability for Decisions of Courts of Last Instance in Environmental Cases’ (2004) 16 Journal of Environmental Law 329; H. Somsen, 'Francovich and its application to EC environmental law’ in H. Somsen (ed.), Protecting the European Environment: Enforcing EC Environmental Law (Blackstone, 1996) 135; G. Slynn, ‘The European Community and the environment’ (1993) 5 JEL261.
  • [2] M See 30765/08, Di Sarno et al. v. Italy, 59909/00, Giacomelli v. Italy. ■^P. Trimarchi, Rischio e responsabilita oggettiva (Giuffre, 1961); P. Trimarchi, La responsabilita civile: atti illeciti, rischio, danno, (Giuffre, 2017); F. James, ‘Accident Liability Reconsidered’, (1948) 57 Yale Law Journal, 549; G. Calabresi, The Cost of Accidents: A Legal and Economic Analysis (Yale University Press, 1977); R. A. Posner, Economic Analysis of Law, 8th ed. (Aspen Publishers, 2011); M. Atiyah, Accidents, Compensation and the Law, 9th ed. (Cambridge University Press, 2018).
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