Rulings by the European Court of Justice on cases involving the violation of EU environmental laws often go unheeded, threatening Europe’s wildlife, a new report by the EEB and BirdLife finds.
Laura Hildt urges the European Commission to follow up and better enforce infringement proceedings.
The European Commission periodically releases its infringement package, which contains the decisions on legal actions against EU member states which have failed to comply with EU law.
This may seem like an abstract exercise of interest only to policy wonks, but when these decisions and the steps that follow them relate to environmental legislation, they can quite literally be life or death issues for specific species and habitats.
They are life-saving when they are implemented and enforced properly. However, when the actions that follow are insufficient or lacking entirely, when violations of the law do not end, despite a judgment from the highest court of the EU, when destructive practices continue and harmful infrastructure remain in place, the situation of these species and habitats becomes ever more precarious and the rule of law is undermined.
Put differently, the basis of our wellbeing and that of the natural world continues to be under threat, even though the tools to act are right there.
Paper tigers
On the books, the EU has some of the strongest environmental laws in the world and the European Court of Justice plays a significant role in applying and developing these laws, often setting landmark precedents.
The European Commission’s periodic infringement package, which usually includes decisions on legal action against member states for their failure to comply with EU environmental law, is an important first step and vital tool for protecting our environment.
However, research carried out by the EEB and BirdLife shows that despite rulings from the Court of Justice, these cases do not always lead to the required changes on the ground, with damaging activities continuing, harmful developments remaining in place and no change in the management occurring. Therefore, for these tools to be effective, the Commission must step up its enforcement activities, including by following up on cases after judgment have been issued.
Our findings are not only a major concern in light of the continued loss of biodiversity globally and in Europe and the immense effects this has upon our lives, but also raise questions about the respect for the rule of law in some member states.
Clipping the wings of biodiversity
The species and habitats these judgments sought to protect, such as the red grouse, the corncrake or the Acheloos delta, one of Greece’s most important wetlands, are not just nice to have but are key elements of their ecosystems.
Take the Acheloos river. It is situated in an important area for migratory birds and is home to a rich diversity of endemic plant and animal species. Construction work on a river diversion project began back in 1980. Following a Court of Justice decision in 2012, a clear national decision annulling the diversion plan was issued in 2014.
Nonetheless, permits continued to be granted for elements of the larger project, leading to the completion of a dam despite ongoing legal disputes and strong resistance from local residents. Rather than adapting management practices to work with nature, in line with EU and national court decisions, this valuable site continues to be subject to ongoing destruction.
The Acheloos delta and other natural habitats subject to infringement proceedings play a crucial role in providing various ecosystem services to us, such as medicine, food or carbon storage, mitigating some of the effects of the climate crisis, while also contributing to our overall wellbeing.
In short, we depend on biodiverse ecosystems and, so, need to protect the various elements that make up this diversity. This includes the species and habitats protected by the Nature Directives that were the subject of the judgments analysed.
As the ‘guardian of the treaties’, the European Commission is responsible for ensuring that national governments comply with EU law. When they do not, the Commission can start infringement proceedings. As a last resort, the Commission can then refer non-compliant member states to the Court of Justice, the highest court of the EU.
Courting defiance
The evidence we have compiled shows that even a ruling from the Court of Justice does not always lead to member states complying with infringement proceedings.
In our report, we analysed the implementation and enforcement of cases relating to the Birds and Habitats Directives, two pillars of the EU’s nature protection laws, to see whether the judgments led to positive outcomes.
Unfortunately, the evidence was disappointing. Out of 11 cases from 11 member states, only three cases show a fully positive result and another three involved insufficient steps being taken to implement the judgments. The remaining five cases showed no improvement or even a continued deterioration of the situation on the ground.
This represents a double-edged problem: in addition to failing to protect species and habitats as required by law, non-compliance with judgments from the highest court of the EU risks undermining trust in the European legislative and judicial system. Non-compliance also threatens the rule of law which is a fundamental value of the EU enshrined in its Treaties.
Full weight of the law
Given this clear need to improve the implementation and enforcement of EU environmental law, we welcome the acknowledgement in the EU’s Biodiversity Strategy for 2030 that ‘’[t]he full implementation and enforcement of EU environmental legislation is therefore at the heart of this strategy’’ and a similar commitment in the European Green Deal.
However, these commitments must not become yet more dead letters and must be backed up with concrete actions. To make the commitment in the Biodiversity Strategy a reality, the Commission must monitor cases throughout the infringement procedure, including after Court of Justice rulings, and take adequate follow-up actions to ensure the full implementation of the EU environmental law acquis, both in theory and in practice. This includes investigating whether the harmful activity has stopped completely and whether the affected habitats have been restored and long-term management safeguarded.
Towards this end, the European Commission should set up and manage a public database monitoring the steps taken by member states to address environmental infringements and preliminary reference judgments. This database should include all follow-up inquiries by the Commission and resulting activities.
Such a database would not only increase transparency but can also help the Commission obtain and utilise relevant information on the local situation from other stakeholders, such as civil society, thus improving overall accountability. These steps will need an increase in political will as well as additional resources.
The European Commission is often the last line of defence for Europe’s vulnerable species and habitats. It is high time that the EU executive rose to the challenge. Nature and our future wellbeing depend on it.
