Legal Enforcement

Statistics on environmental infringements

The Environment Directorate General has for many years now been handling the most significant case load of the Commission both in terms of open cases under investigation and in terms of infringement cases. At the end of 2009, the Environment Directorate General had 451 open infringement files under investigation. Infringement files are those in which at least the first step in legal action under Article 258 Treaty on the Functioning of the European Union (TFEU) has been taken through the issuing of a letter of formal notice. On average, 20% of Commission infringement actions are handled by the Environment Directorate General. Significant infringement case loads are also handled by the Directorate Generals responsible for taxation questions, for transport and energy policies and the Directorate General responsible for the functioning of the Internal Market.

If one looks at the evolution of infringement cases over the years, it can be seen that over the past 5 years the number of such cases has remained fairly constant. With the enlargement of the EU this case load may increase in the coming years.

(i) Infringements by environmental sector

The tables below present the data on open infringement cases per sector for the end of 2008 and for the end of 2009.

Nature conservation, waste and water legislation accounts for 59% of the infringement case load for the environment sector, with the sectors of impact assessment and air contributing the bulk of the remainder (27%).

The high percentage of cases concerning nature protection legislation can be explained by the fact that many infrastructure developments proposed in Member States that lead to complaints are those affecting in some way Natura 2000 sites or EU protected species. The balancing act of ensuring the protection of such sites and species on the one hand and allowing Member States to be free to pursue economic develop on the other is one that requires constant work and vigilance. Similarly, balancing acts are required for cases in which complainants invoke the environmental impact assessment Directive. Such complaints are often categorised as so called NIMBY (Not In My Back Yard) cases. The fact that complainants raise concerns about proposed developments in their vicinity does not however mean that those complaints are not in many cases legitimate if evidence is available that Community law has not been respected.

The last few years have also seen a marked increase in cases in the air sector. New cases were launched against numerous Member States in 2008 and 2009. These included cases concerning the failure to ensure that PM10 (particulate matter) limit values set in the relevant Air Quality Directive were met.

The overall percentage share of waste and water cases reflects the fact that the Environment Directorate General has been launching more cases on these sectors to follow up on the timely and correct transposition of new water and waste Directives and cases ensuring that legislation concerning urban waste water and landfill infrastructure is respected.

(ii) Infringements by type

There are three types of infringements: Non-communication infringements are opened if a Member State fails to notify legislation which transposes a specific directive before a deadline given in a directive. Non-conformity cases are opened if shortcomings are identified in the transposition of a given directive in a Member State. Bad application cases address shortcomings in the application of the transposed provisions of a directive by a Member State.

This table shows the different categories of cases pursued by the Commission under its infringement procedures.  In comparison to the rest of the Commission, the Environment Directive General handles a higher percentage of both non conformity and also bad application cases.

• The higher percentage of non-conformity cases can be explained by the fact that the Environment Directorate General has been systematically assessing the conformity of national transposing legislation, even for some of the older directives, in the main through the launching of conformity checking contracts carried out by outside consultants. These studies have and continue to be followed up with infringement action where they provide evidence of non-conformity.

• The higher than average percentage of bad application cases can be explained by the fact that much of the environmental legislation concerned raises practical challenges when this legislation is applied in practice, in particular where consideration is being given to permitting infrastructure developments.

(iii) Infringements by Member State

If one looks at the case load of open infringement cases being pursued against Member States as shown in the table below, it is immediately apparent that there is a considerable difference between the numbers of open cases for the 15 older Member States compared to the 12 new Member States. This is not surprising given that case loads often build up over time. However, some of the new Member States are already generating caseloads to rival those of the older Member States.

With regard to the older Member States where the case loads are more mature and the larger Member States generally also have a larger case load, although Ireland and Germany are exceptions to this latter trend. A slightly larger case load can also be observed for the southern Member States than the northern Member States. However, a note of caution should be added that a large case load does not automatically translate into a conclusion that environmental implementation and enforcement is particularly more troublesome in that Member State or the reverse, that a low case load automatically reflects good environmental performance. The overall case load can depend on many different factors such as the level of pro-activeness of local environmental groups and citizens and how likely they are to approach the European Commission with their concerns rather than maybe turning to their national authorities or courts.

The majority of cases are infringements under Article 258 TFEU. With regard to cases where the existence of an infringement was declared by a judgment of the European Court of Justice (Article 260 cases), these are monitored with a particular attention. Article 260 TFEU provides the Commission with powers to refer a case to the European Court of Justice again if a Member State fails to comply with an earlier judgement. In such cases, the Commission can and does ask for financial penalties to be imposed.

At the end of 2009, the Environment Directorate General was following up 61 judgements of the European Court of Justice with action under Article 260 TFEU. Despite this high number of cases it should be noted that the majority are in the process of being solved and are therefore unlikely to require a referral to the European Court of Justice for a second time. Many of the cases being pursued in this category may already have been solved, but the actions taken by the Member States need to be assessed and verified before the case can be closed. Such verification can require considerable technical input, for example, where the compliance of waste water collecting systems and treatment plants is being checked against the relevant Community standards. Such monitoring data usually needs to cover a period of at least six months before a final decision can be taken on the consistency of compliance. To date, there have been three judgements of the European Court of Justice imposing financial penalties in cases handled by the Environment Directorate General: (Commission v. Greece, Case C-387/97, Commission v. Spain, Case C-278/01 and Commission v. France, Case C-121/07).