EU laws with teeth that won’t bite: an act of self-sabotage?

Whereas a law that is breached can be enforced, the nice words of a political commitment cannot. The EU has strong environmental laws, with which those bound by them must comply – in theory. In reality, the EU is notoriously unwilling and slow to show some teeth and enforce laws. While promises to improve are there, action is lacking. We propose concrete steps for how to move to a ‘Better Compliance Agenda’ to ensure EU environmental law delivers to its full potential.    

Mind the implementation gap 

Implementation, i.e. the actual application of and compliance with the law on the ground, continues to lag behind. Take the Habitats Directive as an example: For the last 30 years, Member States have been obliged to take conservation measures within Natura 2000 protected areas to ensure they are in a good state. Yet only 15% of habitats have a good conservation status, compared to 81% in either a bad or poor status. 

This implementation gap undermines the power of EU environmental law and threatens to weaken the intended positive impact of the European Green Deal. To tackle the biodiversity and climate crises, not only do we need strong legislation with teeth, we also need willingness, structures and people to ensure that those teeth can actually bite, when needed. 

Enforcement failures

Implementing EU law is first and foremost the responsibility of national governments. However, one of the Commission’s roles is to ensure that that EU law is applied properly by the Member States and to intervene when it is not. Still, the Commission systematically fails to take seriously its role as the ‘Guardian of the Treaties’ by regularly failing to take adequate enforcement action, or by being notoriously slow. 

This lax approach to enforcement is a twofold problem: Firstly, the ongoing non-compliance means that the environment is simply not protected in the way the law requires it to be, meaning that fundamental objectives are missed. At a time of a deep ecological and climate crisis, we simply cannot afford to sit back when fundamental environmental safeguards are breached. Existing legal obligations must be a non-negotiable baseline and should be enforced as such. Secondly, tolerating non-compliance is also a problem for the rule of law and risks undermining respect for EU law, the Commission’s credibility and public trust in the EU more broadly. 

Despite promises from the Commission President Ursula von der Leyen herself to focus on ‘tighter enforcement’ and calls from national governments and parliamentarians for a swifter enforcement of EU environmental law, the Commission’s approach continues to be insufficient. There are still far too many cases where years pass by without serious action by the Commission; The Water Framework Directive complaint brought by our member NABU in 2017, for example, has still not seen concrete steps being taken in response to the complaint. 

A Better Compliance Agenda 

This is not a one-off issue but a systemic problem that requires a systemic solution. Against this backdrop, the EEB and BirdLife have developed eight policy recommendations for a ‘Better Compliance Agenda’ – a holistic strategy to strengthening the Commission’s enforcement role to ensure EU environmental law can deliver fully. Real political will to tackle this challenge is at the core of it. Significant increases in staff capacity and transparency are needed to help deliver more regular infringement action, quicker complaint- and infringement-handling, as well as a better follow-up of existing cases. 

Enforcement at the Core of a Successful Green Deal 

The EU has some of the strongest environmental laws; more environmental laws are to come under the European Green Deal, with some already on their way. Still, any law is only as good as its implementation and enforcement. As a result, failing to address the implementation and enforcement gap will significantly weaken the impact of the European Green Deal, and with that the entire legacy of this Commission. 

There are roughly two more years remaining for the von der Leyen Commission to make those changes, moving the EU towards a more transparent and effective Union for its citizens. Now is the time to get the enforcement house in order, so that existing and new legislation can have the needed impact to tackle the climate and biodiversity crises.

Read the full report with all eight recommendations here