New Commission strategy: infringement proceedings only for policy priorities

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Communication: Monitoring the application of EU law: 2016 Annual Report. COM(2017)370

The Commission has clarified its new strategy to only open infringement proceedings where they align with its policy priorities. Ludwig Kramer notes that the strategy departs from the Commission’s obligation to ensure the application of EU, enshrined in Article 17 of the Treaty on the Functioning of the European Union.

The Annual Report on the application of EU law for 2016 contains few details on environmental issues, as the report is very general and focuses on policy issues. Some details of cases are given in the accompanying document SWD (2017) 359, though.

However, in an introductory chapter, the Commission it explained its “new” strategy as regards the monitoring of application (p.4):

“The EU should focus on problems where the Commission’s enforcement action can make a real difference and on policy priorities. Consequently, the Commission will distinguish between cases on the basis of the added value an infringement procedure can achieve. It will close cases when it considers this appropriate from a policy point of view”.

This announcement clarifies that the Commission does not really have the intention to ensure, as the EU Treaties put it in Article 17 TEU “the application of the measures adopted by the institutions”. Rather, it takes a political decision as to whether to pursue a case. The Report does not justify the decisions and such decisions cannot be submitted to a court for clarification. Therefore, new strategy has created a considerable amount of arbitrariness. The environment has no voice of its own and, all too easily, the Commission can now consider that non-compliance with EU environmental rules is politically not appropriate.  At the same time, the Commission refuses to improve access to justice in environmental matters at EU and at national level, depriving civil society of the possibility to contribute itself to a better application of environmental law.

There are two consequences, of which one should be aware:

(1) The environmental legislation of the EU Member States is largely the same, as it is based on EU directives and regulations. Yet between the Scandinavian countries and Southern Europe, the Netherlands or Austria and some countries in Central and Eastern Europe, there is a significant variation in the degree of actual, daily protection of the environment, despite this harmonized legislation. The reason for that is the lack of actual, effective application of the existing environmental provisions in daily practice. As the Commission apparently has no intention to address this problem, the discrepancies between EU Member States as regards environmental protection will increase, not decrease.

(2) Complaints by members of the public on the disregard of EU environmental law in daily practice are normally no longer acted on by the Commission, as it has other priorities (See p. 4: non-transposition of EU legislation, non-compliance with a judgment of the CJEU, lack to protect the EU financial interests or the violation of exclusive powers.). Progressively, the whole environmental sector – individuals, NGOs, green political parties etc – sees the EU as being in the hands of large economic interests  and turning its back on the EU integration process. One expression of this might be that the number of new environmental complaints fell, in2016, to its lowest level in six years (SWD (2017) 359, p.24.) Making the EU an instrument of big business cannot be in the interest of anybody; however, the present environmental policy of the EU – almost no new legislation,  bad and arbitrary monitoring of the application of existing rules – progressively leads to this situation. 

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Allen McGregor