Turów case – the competencies of the European Commission as an intervener might not be sufficient

By ClientEarth environmental democracy senior legal researcher Julia Kozakiewicz 

The case C-121/21 concerned the license to conduct mining activities in the open-pit lignite mine Turów (Poland), which was extended by 6 years without prior environmental impact assessment in line with the Polish Environmental Impact Assessment (EIA) Act of 2008.

The operator of the mine submitted an application to extend the term of the license. The Regional Director for Environmental Protection in Wrocław issued a decision on environmental conditions for the project consisting in the continuation of exploitation of the Turów lignite deposit. Later, the Polish Minister of Climate granted a license for lignite mining until 2026. All the above was done in accordance with Polish law, pursuant to the EIA Act of 2008, which states that the validity period of a lignite mining concession may be extended once by six years without any environmental impact assessment if the extension is justified by rational deposit management and does not involve an extension of the concession scope.

This came to the attention of the Czech Republic, as the Turów mine is located near its border. Having found that by granting this license, Poland committed a number of violations of EU law, the Czech Republic brought the case before the European Commission. The Commission issued a reasoned opinion accusing Poland of several breaches of EU law. In particular, the Commission found that, by adopting a provision allowing the extension of a lignite mining concession by six years without carrying out an environmental impact assessment, the country was in breach of the EIA Directive.

Considering that Poland had infringed EU law, the Czech Republic filed an infringement action on February 26, 2021.

Pending the final judgment, the Court of Justice granted the Czech Republic’s request for interim measures by ordering Poland to immediately cease mining activities. However, Poland did not comply with the order and on September 20, 2021, the Court ordered Poland to pay the European Commission a penalty of 500,000 EUR per day from the date of notification until Poland complies with the order.

On February 3, 2022, the Advocate General of the Court of Justice of the European Union, Priit Pikamäe, issued an opinion that Poland violated EU law. He agreed with Commission’s intervention and concluded that article 72 sec. 2 point 2 lit. (k) of the Polish EIA Act is not compatible with EU law as far as that national provision lays down a rule which is precisely the opposite of what is required by EIA Directive.

On February 4, 2022, the Czech Republic informed the CJEU that because of the settlement reached with Poland on the dispute, it waived all claims. Consequently, and despite the Commission’s intervention agreeing that Poland is in breach of EU law, the court struck the case from the register by an order of the same date. The Turów mine continues to operate without an EIA.

The inhabitants of Uhelna tried to challenge the Czech-Polish agreement before the Czech Constitutional Court. However, the court dismissed it, saying it was outside its jurisdiction to deal with the interstate settlement. In late 2022, the NGOs BUND Sachsen, the Czech branches of Frank Bold and Greenpeace, and the local group Sousedský spolek Uhelná, filed a complaint to the European Commission against the Polish-Czech agreement. The NGOs demand that the agreement between the States be suspended with immediate effect.

This case certainly raises questions about access to justice and the system of remedies in EU law in the context of inter-State disputes in environmental matters. It demonstrates that when the public interest is at stake, such as environmental protection, the enforcement of EU law by another EU Member State (Art. 259 TFEU) might not be sufficient. When Member States act to protect their own interests, rather than the public interest, the Article 259 TFEU procedure is not an adequate replacement for infringement actions by the European Commission (Art. 258 TFEU), particularly when a settlement between the Member States does not address the EU law violation. Since the European Commission was only an intervener in the Article 259 procedure, after the settlement the case was removed from the docket even though the public interest and EU law continues to be undermined. This raises the question whether it should be possible for Article 259 procedures to continue if the Commission deems that the identified breach of EU law has not been resolved. In the meantime, it is certainly the case that the Commission could start new infringement proceedings in response of the NGOs’ complaint.