08-10-2024
There are currently 1565 infringement proceedings underway against Member States due to alleged incompliance with EU law.
Yet, despite the EU Commission’s commitment to defend the rule of law, it revealed unable to act as a guardian of the Treaty, dramatically so when it comes to environmental legislation.
Indeed, if it considers that a Member State has breached the Community law, the Commission can initiate infringement proceedings.
This procedure begins with the sending of a letter of formal notice allowing the Member State to present its point of view on the infringement identified. If there is no reply to the letter or if the observations presented are not satisfactory, the Commission may refer the matter to the Court of Justice of the European Union (CJEU).
What is the current state of infringements committed by Member States?
According to Investigate Europe, as of 1 July 2024, there are 44 cases against 15 Member States in which the CJEU has found that governments have breached EU law. In all cases, the national authorities have not corrected the infringements. Despite this, the Commission has not yet asked the Court to impose fines.
In addition, 33 of the 44 fines cited above concern rules relating to climate, biodiversity and water quality. The Commission takes an average of 12 years to deal with environmental cases, compared with 9 years for all other cases. Environmental cases cover a wide range of issues, such as the dumping of hazardous toxic waste, the lack of municipal wastewater treatment plants and failures to protect nature.
Among the countries that have been found guilty of environmental offences but have not been fined, Greece is in first place with seven convictions, followed by Spain and Italy with five convictions each, and Italy, Ireland, Poland and Portugal with three convictions each. This lack of effective enforcement mechanisms show to member states that they can breach EU law without too many consequences and, as a result, will not encourage them to review their practices.
How to explain these failings?
Decisions on infringements often seem to be ‘politicised’, which would explain the lack of reaction and penalties applied. As Investigate Europe describes in its example, the Commission can avoid taking legal action during national elections so as not to give the impression of interfering in national affairs.
Furthermore, in Investigate Europe’s analysis, Professor Alberto Alemanno, Founder of The Good Lobby, points out that the CJEU has granted the Commission ‘unconditional discretionary’ over the process and adds that ‘entrusting full discretion to an institution without making it accountable for its action and inaction raises a major democratic legitimacy problem’.
On the other hand, Professor Alberto Alemanno reminds that “the rule of law is not the same for all” and that in some cases “nothing happens” but in others “the Commission takes action in just a few months, such as in Hungarian or Polish cases”. All this combined to reassure States that even if they do not comply with the rules ‘nothing much will happen to them in most cases’.
At the same time, the European Commission does not have its own investigative body and relies heavily on information provided by complainants, whistle-blowers and national governments. This can make it difficult to move certain cases forward and to impose the necessary sanctions.
As reported by Investigate Europe, the European Parliament recently stated that it wished to strengthen its framework for cooperation with the Commission and, consequently, increase its responsibility in areas such as infringements. This is a small step towards improving the rate at which offences are dealt with, particularly in the environmental field, but it remains to be seen whether it will be effective.