EU environmental law

Christoph Hermes
Europa-Institut, Saarland University,
2021
Enforcement of EU environmental
law I
Topics of session 4

 Case study C-441/17 Commission v Poland (Bialowieza forest)

 Implementation of EU environmental law by Member States
 Enforcement by the European Commission: the infringement procedure
The Bialowieza forest case: Introduction

 Show Greenpeace video

 https://www.facebook.com/greenpeaceuk/videos/10154434774709229/
The Bialowieza forest case: Facts

 Puszcza Białowieska: one of the best preserved natural forests in Europe with
large quantities of dead wood and old trees
 Natura2000 protection site for certain priority habitat types and species
 Natura2000 site management plan prohibiting active forest management
measures (e.g. logging, removal of trees infested with bark beetle) in certain
sensitive areas (i.e. old tree-stands, habitat of protected species)
 2016 and 2017: forest management measures authorizing tripling of logging
volume and active forest management in formerly exluded areas; official
justification: bark beetle infestatation
 Intense logging
The Bialowieza forest case: key
provisions of EU law
 Art. 6(3) Habitats Directive: plan or project likely to have significant effect
on the Natura2000 site shall be subject to appropriate assessment; Member
State authorities shall authorize the plan or project only if the appropriate
assessment gives certainty that there will not be adverse effects on the site
 Art. 6(1) Habitats Directive: Member State shall establish the necessary
conservation measures for the Natura2000 site
 Article 12(1) Habitats Directive and Article 5 Birds Directive: Member States
shall protect certain protected species against deliberate killing, disturbance
and destruction of breeding sites
Implementation: what do Member States
have to do?
 Art. 192(4) TFEU: „Member States shall ... Implement the environment
policy“
 Art. 4(3) TEU: “Member States shall take any appropriate measure, ..., to
ensure fulfilment of the obligations arising out of the Treaties or resulting
from the acts of the institutions of the Union“
 For directives: Member State must
 Transpose the directive‘s provisions into national law
 Ensure practical application of the directive
Transposition

 Member States must transpose the provisions of the directive into national law
 See e.g. Art. 23 Habitats Directive: „Member States shall bring into force the
laws, regulations and administrative provisions necessary to comply with this
Directive within two years of its notification. They shall forthwith inform the
Commission thereof. ….”
 Transposition must be through express, binding legislative or regulatory
provisions. Legal certainty!
 Possible problems:
 Member State does not communicate transposition measures in time
 Member State does not transpose correctly
 Problem in the Bialowieza case? No, no issue with the legislation Poland
adopted in order to transpose the Habitats and Bird Directives.
Ensuring the practical application

 Art. 288(3) TFEU: ”A directive shall be binding, as to the result

to be achieved, …”
 Member States must, in addition to the correct transposition,
ensure that its provisions are in fact applied and enforced so
that they can produce the desired results.
 Problems in the Bialowieza case:
 Bad application of Art. 6(3) Habitats Directive (no sufficient
appropriate assessment of the forest management plans)
 Bad application of Art. 6(1) Habitats Directive (no conservation
measures)
 Bad application of Art. 12(1) Habitats Directive and Art. 5 Birds
Directive (failure to protect species)
Who enforces EU environmental law?
 Enforcement by private parties (see next session)
 Against acts of Member States’ authorities
 Problems
 Direct effect of the EU law provision?

 Access to justice in the national courts?

 In the Bialowieza case: no legal protection against forest management plans in Poland

 Against acts of the EU institutions

 Problem: access to justice under the limitations of Art. 263 TFEU

 Enforcement by the European Commission: the infringement procedure of Art.

258 TFEU
 Commission as “guardian of the Treaty” (and secondary law)
 See Art. 17 TEU (“Commission shall … ensure the application of the Treaties , and
of measures adopted by the institutions pursuant to them”)
The infringement procedure
 Art. 258 TFEU
“If the Commission considers that a Member State has failed to fulfil an obligation
under the Treaties, it shall deliver a reasoned opinion on the matter after giving the
State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down
by the Commission, the latter may bring the matter before the Court of Justice of the
European Union.”
 Three-stage procedure:
 Letter of formal notice
 Reasoned Opinion
 Application to the Court of Justice
Statistics infringements
Statistics infringements
Origins of infringement cases – Evidence
 Commission investigates out of its own initiative (“ex officio”)
 Complaints to the Commission
 Citizens can submit complaints
 Commission has discretion as to whether it opens infringement proceedings
(priorities of infringement policy)
 In the Bialowieza case: complaint by Client Earth and six other NGOs

 Commission bears the burden of proof to establish the infringement

 Problem: Commission does not have inspection powers (problematic in
particular in bad application cases)
Development of the infringement
procedure in the Bialowieza forest case
 March 2016: Polish forest management measures; NGO complaint to
Commission
 April 2016: Commission requests information from Poland
 June 2016: Commission staff visits forest; letter of formal notice
 Polish reply; discussions
 April 2017: Reasoned opinion
 Polish reply
 July 2017: Application to the Court of Justice together with request for
interim measures
Timing of infringement procedures –
Interim measures
 Time-span from letter of formal notice until Court judgment can take several
years
 Problem: environment might be irreversibly destroyed by the time of the
Court judgment
 Article 279 TFEU: “The Court of Justice of the European Union may in any
cases before it prescribe any necessary interim measures.”
 Commission to demonstrate:
 Prima facie case
 Urgency (risk of serious and irreversible harm)
 Balancing of interests
Urgency in the Bialowieza forest case
The “Bialowieza drama”
 20 July 2017: Commission requests (together with main application under Art. 258
TFEU) that Court orders Poland to cease the problematic forest management
operations during the main proceedings (Art. 279 TFEU)
 27 July 2017: Court issued a provisional order (inaudita altera parte) granting the
request
 Then: Poland continued the prohibited forest management operations
 September 2017: Commission shows satellite photos on continuing logging at a
Court hearing
 Commission submits supplementary request to impose penalty payments based on
Art. 279 TFEU if Poland does not comply with the Court order
 20 November 2017: Court orders Poland to immediately cease its active forest
management operations in the Bialowieza forest. Threat of penalty payments of at
least €100 000 per day if Poland does not comply.
 Logging operations stop.
 April 2018: Court finds infringement in main case.
A political case?
The judgment in the Bialowieza case
 Poland failed to comply with:

 Art. 6(3) Habitats Directive: Forest management operations did not undergo
sufficient appropriate assessment of their effects on the Natura2000 site
before they were adopted; not convinced by bark beetle argument
(contradicted by Poland’s site management plan of 2015)
 Art. 6(1) Habitats Directive: Forest management operations run counter to
the Natura2000 conservation measures of 2015
 Article 12(1) Habitats Directive and Article 5 Birds Directive: Forest
management operations lead to killing, disturbance and destruction of
breeding sites of protected species
Follow-up: what if the Member State
does not comply?
 Content of Art. 258 TFEU judgment: Declaration by Court that Member State has
failed to fulfil its obligations under the relevant EU law
 Art. 260(1) TFEU: Member State ”required to take the necessary measures to
comply with the judgment”
 If Member State does not comply, Commission can bring the case before the Court
again (after letter of formal notice) pursuant to Art. 260(2) TFEU
 Art. 260(2) TFEU: “…. . If the Court finds that the Member State concerned has not
complied with its judgment it may impose a lump sum or penalty payment on it.”
 Penalties calculated taking into account:
 Seriousness of the infringement
 Duration of infringement
 Country's ability to pay
 Amount proposed by Commission can be changed by the Court; can go into several
millions of Euros
Further reading

 Krämer, EU Environmental Law (8th edition, 2016), chapter 12

“Implementation”
 Jans/Vedder, European Environmental Law – After Lisbon (4th edition, 2012),
chapter 4 “Implementation”
 Order of the Court of 20 November 2017, C-441/17 R, Commission v Poland,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=196944&
pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3254792
 Judgment of the Court of 17 April 2018, C-441/17, Commission v Poland,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=201150&
pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3254792
 Tomasz Tadeusz Koncewicz, The Białowieża case. A Tragedy in Six Acts,
https://verfassungsblog.de/the-bialowieza-case-a-tragedy-in-six-acts/