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Monitoring the Application of Union Environmental Law and Sanctions

Member States’ Obligations

According to Article 192(4) TFEU, Member States shall finance and implement environmental policy. When an environmental act is adopted by the Union institutions, or a principle is developed through Court of Justice practice, it is up to the Member States to ensure that it is applied in their respective national legal systems. Member States’ action is thus crucial for the practical impact of EU environmental law. To increase the impact of EU law and individuals’ possibilities to invoke it, and also to support Member States and monitor their compliance with EU law, several mechanisms have been established; some specifically in the Treaties, others through the practice of the Court of Justice.

The EU Treaty imposes a general obligation of sincere cooperation by Member States when implementing EU law. Article 4(3) TEU states that ‘The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.’ Member States shall also, under the same article, ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’. It is a far-reaching obligation that may take many forms.1

The most common type of legal act relating to the environment, as previously mentioned, is the directive. Directives often contain both formal and substantive requirements on Member States. Among the formal requirements are the duty to implement the directive correctly and within a specified time, to notify the Commission of the implementation, and to prepare and submit reports of the transposition of the directive into national law. Member States are often required to send such reports to the Commission. The requirements on how to transpose a directive into the national legal order are discussed in Chapter 1. In summary, to the extent that a directive confers rights on individuals, its provisions shall be transposed through binding rules that may be invoked before national courts and authorities.

1 On the principle of sincere cooperation, see further section 2.4.10.

EU Environmental Law and Policy. David Langlet and Said Mahmoudi. © David Langlet and Said Mahmoudi 2016. Published 2016 by Oxford University Press.

Yet it is not sufficient that a directive’s provisions are properly transposed into national law. National authorities must also ensure that the rules actually have an impact. The Court of Justice has held that when a directive states that an activity requires a permit, Member States are to ensure that their permit system is actually applied and complied with, by for example implementing appropriate controls and by identifying, stopping, and penalising activities without permit. This requires, however, that the result which the directive obliges Member States to achieve is clearly worded.[1]

The requirement that EU law shall have a practical impact at national level applies also to other legal instruments, including the Treaties. Member States’ competent authorities must use ‘all the means at their disposal’ to achieve the purposes of the Treaties.[2] Practical and political problems in implementing EU law are usually not accepted as a valid reason for not complying with the Treaties.[3] [4] Nor have resistance from individuals, for example from the local population where a particular action should be taken, or problems with criminal activities that undermine the Member State’s implementation measures, been accepted as excuses for a Member State’s failure to perform an obligation under EU law.5 That such a failure lacks negative consequences or that there have been no complaints from individuals regarding, for example, incorrect application of a directive does not affect the conclusion as to whether a breach of EU law exists. Failure to fulfil obligations imposed by an EU law constitutes an infringement.[5]

  • [1] Case C-494/01 Commission v Ireland ECLI:EU:C:2005:250, paras 116—17.
  • [2] CaseC-165/91 van Munster ECLI:EU:C:1994:359, para 32.
  • [3] Case 265/95 Commission v France ECLI:EU:C:1997:595, para 56.
  • [4] Case C-297/08 Commission v Italy ECLI:EU:C:2010:115, paras 83—84.
  • [5] Case C-392/96 Commission v Ireland ECLI:EU:C:1999:431, paras 60—61.
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