P. 7 Upd 2020

Implementation -
Obligations of Member States

to apply EU Law
1
Treaty provisions:
1. The Lisbon T r e at i e s do not c o n t ai n

e n vi r o n me n t a l p ro v i s i on s w h i c h M e m b e r S t a t e s
w o u l d h a v e t o t r a n s p o s e i n t o ( o r to a p p l y t o ) t h e i r
national legal system;
2 . h o w e v e r , a r t . 4 . 3 o f th e T E U e s t a b l i s h e s t h a t
M e m b e r S t a t e s s h a l l a s s i s t t h e E U i n c a r r y i n g o ut
its tasks and facilitate the achieving of such tasks.
RESD – Environmental Law and Regulation - Prof. M. D'Angelosante
Implementation -
to apply EU Law
2
Secondary legislation:
1. The situation described in the previous slide is different

as regards secondary EU environmental law;
2. in fact, under art. 192.4 of the Tfeu, the Member States
have in principle to implement the different measures
which have been adopted in pursuing EU environmental
policy (for instance, EU directives usually need to be
transposed into national law, and regulation frequently
contain provision requiring Member States to take action).

Implementation -
to apply EU Law
3
Secondary legislation
(transposition of directives - 2):
1. Moreover the ECJ requires the literal transposition of a
definition contained in a directive where a different choice
could create doubts on the meaning of the provisions
transposed;
2. Furthermore, according to EU secondary law, the
transposition of an environmental directive containing
mandatory requirements cannot be made by non-binding
national measures (such as voluntary agreements and
agreements which are not generally binding).
Implementation -
to apply EU Law
4
1. However, no obligation to transpose a directive exists
where it is impossible that the problem dealt with by the
directive could ever occur in a Member State (for instance,
Austria cannot transpose a directive containing provisions on
sea waters)…
2. …on the contrary, this duty exists when the directive
disciplines matters that at the moment do not interest the
Member State concerned, but could interest it in the future
(for instance directives about industries at the moment not
present on the territory of the State).
Implementation -
to apply EU Law
5
1. Furthermore the transposition measures of a directive must

cover the whole territory of the State concerned, even though
it has a regional or federal structure…
2. …in fact, from the point of view of the EU, it is not
relevant whether a provision of EU law is transposed by one
single act at national level or by a number of regional acts, as
long as the transposition measures cover the whole of the
territory .
Implementation -
to apply EU Law
6
1. A correct transposition also requires the establishing of

sanctions for non-compliance with the EU provisions;
2. the ECJ interpreted art. 4.3 of the TEU to mean that
national sanctions for non-compliance with EU law
must correspond to sanctions for breach of equivalent
national law provisions, and that they must be effective
– proportionate – dissuasive.
RESD – Environmental Law and Regulation Prof. M. D'Angelosante
Implementation -
Monitoring
transposition and application
7
Implementation Reports - 1:
1. Almost all EU environmental directives have contained a

provision asking the Member States to report on their
implementation;
2. typically, such reports have to be made every three years;
3. after that, the Commission has to produce an EU report on
the basis of the national reports;
4. however, this system has not led to the desired result,
since both the national and EU reports have not been
drawn up regularly.
Implementation -
Monitoring
8
T h e C o m m i s s io n ’ s m o n i t o r i n g f u n c t i o n - 1 :
1. The C o m m i s s i on h a s t o e n s ur e t h a t E U
e n vi r o n me n t a l l aw i s a p p l i e d ( a rt . 1 7 o f t h e
T E U ) ; a s a c o n s e qu e n ce , i t i s c a l l e d t he
‘Guardian of the Treaty’.
2. On the other hand, the Member States have to
e n s u r e th e i m p l em e n t ati on o f E U e n vi r o n me n t a l
law (arts. 4 of the TEU and 192.4 of the Tfeu).
Implementation -
Monitoring
9
Citizens’ complaints - 1:
1. Environmental complaints to the Commission can
come from many kinds of subjects (such as
individuals, public or private organizations, etc. …).
2. The Commission considers as a complaint any
written statement which invokes the breach of EU
(environmental) law and asks the Commission to
intervene to repair this breach.
Implementation -
Monitoring
10
1. However, at the moment the complainant has no direct rights as
regards the omission to examine a complaint, because the Commission
refused to lay down, in a legal instrument, the procedures for examining
potential breaches of EU environmental law, while such a legal
instrument exists in competition law.
2. The complainant also does not have a right to ensure the Commission
makes adequate use of its discretion. As a consequence, the Commission
could take an arbitrary decision.
3. This practice has led to a reduction in the number of cases presented.
Implementation -
Monitoring
11
1. The ECJ stated that the Commission has a margin of
discretion which cannot be questioned by individual
complainants.
2. However, the mobilization of public opinion constitutes an
important element of ensuring the taking into account of
environmental interests and demonstrates the partly political
character of the complaint procedure, which is not transparent
enough and has not led to a situation where the Commission is
perceived as a true complaint institution.
Implementation -
Monitoring
12
Direct effect of environmental provisions - 1:

1. In order to make EU provisions fully operational for the
individual citizens, the ECJ had, by the early years of the EU,
already developed the doctrine of direct effect.
2. Moreover, the ECJ constructs the direct effect as a
sanction against Member States which have not, or have not
correctly, transposed a directive.
3. Finally, this doctrine is of rather restricted use.
Implementation –
Sanctions for non-application
13
Action under art. 258 of the Tfeu - 1:
Art. 258 of the Tfeu establishes the following procedure:
1. formal notice of breach of obligations to the Member

State (prejudicial procedure);
2. issue of a reasoned opinion (prejudicial procedure);
3. application to the ECJ.
Implementation –
14
1.the Commission has a very large discretion to apply the ECJ;

2. there is no delay required in submitting the application to the
ECJ;
3. the ECJ’s decision states that there is a breach of EU
environmental law, but does not annul the national measure
concerned (declaratory nature);
4. it is up to the Member States to comply with the judgment.
Implementation –
15
Action under art. 259 of the Tfeu:
1. art. 259 of the Tfeu allows the Member States to take

judicial action against another Member State which has not
fulfilled its environmental obligations under the EU
Treaties;
2. however, this case is not at all frequent, since the Member
States prefer to ask the Commission to take action.

Implementation –
16
1. where a Member State does not comply with a judgment by

the ECJ, the Commission may, under art. 260 of the Tfeu, start
a new procedure, only sending out a letter or a formal notice;
2. if it is not satisfied with the Member State’s answer or if the
Member State does not answer, the Commission may go
directly to the ECJ, without sending a reasoned opinion;
3. the judgment of the ECJ has a declaratory legal nature.

Implementation –
17
Action under art. 260 Tfeu - 2:
1. the ECJ can also apply a penalty payment;

2. the ECJ had, until now, delivered few
environmental judgments under art. 260 of
the Tfeu.
Implementation –
18
State liability:
1. according to the ECJ, a Member State may be liable for

damages to private individuals in case of a serious breach of EU
obligations, in violation of the duty of transposition of an EU
directive conferring rights to individual persons…
2. … moreover, a causal link is necessary between the Member
State’s obligations and the damage, while fault or negligence of
the State are not required.

Implementation –
19
Financial sanctions - 1:
1. financial sanctions for breach of EU environmental

law exist in theory…
2. … indeed, in 2006, the new regulations on the
Structural Funds and the Cohesion Fund established
that non-compliance with EU law did not usually
entitle the Commission to retain funds.
Implementation –
20
Financial sanctions - 2:
1. furthermore the Commission’s decision to recover

or not recover its financial assistance cannot be
attacked by any third person…
2. … it is known that the Commission, in the past, has
sometimes refused financial assistance, but not in
environmental cases.
Implementation –
21
Criminal sanctions:
1. while the EU has the competence to deal with criminal
matters, the kind and level of criminal penalties is the
competence of the Member States;
2. in this light, directive 99/08 established a number of
actions which the Member States must provide for
criminal sanctions in environmental matters (such as
the damaging of fauna or flora, trade in endangered
species…).
Implementation –
22
Interim measures:
1. Art. 279 of the Tfeu establishes that the ECJ may prescribe
any necessary interim measure in cases before it;
2. it is generally accepted that the Commission has no such
powers: it may appeal to the ECJ to prescribe such measures,
but this can only take place where a case is pending before the
ECJ or where it is submitted to it together with the request for
the interim measure;
3. it is necessary to demonstrate the urgency and necessity of
the measure.
Implementation –
23
Actions by individuals - 1:
1. EU environmental law does not provide for any active role of citizens
or their organizations to ensure its full application: in fact the role of
monitoring application is given to the Commission, while the complaint
procedure does not give citizes the possibility to actively pursue any lack
of compliance with EU law;
2. actions against Member States can only be taken by the Commission,
but where the Commission itself causes environmental impairment,
there is no possibility for a citizen to take action against the
Commission, since that citizen is seen as not being directly and
individually concerned .
Implementation –
24
Actions by individuals - 2:
1. the procedure on the basis of which an individual can address

national courts and claim a breach of EU law is governed by
national law, since no general EU provisions exist;
2. in this framework, the procedure on the basis of which the
monitoring of application of EU environmental law should be
ensured by the EU is a question of legal and institutional policy;
3. however, usually Member States do not like to be checked as to
their environmental performance.

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Implementation -

Obligations of Member States

1. The Lisbon T r e at i e s do not c o n t ai n

1. The situation described in the previous slide is different

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

1. Furthermore the transposition measures of a directive must

1. A correct transposition also requires the establishing of

1. Almost all EU environmental directives have contained a

Direct effect of environmental provisions - 1:

Action under art. 258 of the Tfeu - 1:

Art. 258 of the Tfeu establishes the following procedure:

1. formal notice of breach of obligations to the Member

Action under art. 258 of the Tfeu - 2:

1.the Commission has a very large discretion to apply the ECJ;

Action under art. 259 of the Tfeu:

1. art. 259 of the Tfeu allows the Member States to take

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

Action under art. 260 of the Tfeu - 1:

1. where a Member State does not comply with a judgment by

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

Action under art. 260 Tfeu - 2:

1. the ECJ can also apply a penalty payment;

1. according to the ECJ, a Member State may be liable for

RESD – Environmental Law and Regulation - Prof. M. D'Angelosante

1. financial sanctions for breach of EU environmental

1. furthermore the Commission’s decision to recover

1. the procedure on the basis of which an individual can address

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