Guardians of the treaties or neglectful custodians: Flaws in EU environmental governance

EU environmental law exists to protect people and the environment and to build avenues towards a liveable future, but it can only do that if it is applied. Each day laws designed to protect are ignored, without legal consequence. But whose role is to step in when EU countries fail to uphold the law, and why are they failing to do so? Laura Hildt and Samantha Ibbott report.  

The European Union is a collection of countries working together to achieve democratically approved objectives by applying EU law. At the heart of this process sits the law-making trio: the European Commission, the Council of the European Union, and the European Parliament. The Commission is the ideas generator, responsible for proposing new laws or suggesting changes to existing laws. These are then discussed and approved (or not) by elected officials in the Parliament together with the EU government ministers in the Council. Once an agreement is reached, voila! A new law is born. 

It is then up to each EU government to apply the new, or amended, law at a national level. Which given that they approved the law in the first place should be pretty straightforward, right? Unfortunately, this isn’t always the case.  

Non-compliance with EU law takes many forms. A country may fail to adopt the law into national law, or at least fail to do it properly. Perhaps they fail to apply the law or to meet the targets that it sets out (such as reducing emissions). There are even cases where countries fail to comply with judgments made by the EU’s highest court, the Court of Justice of the EU. 

So, what happens when countries refuse or fail to implement the laws that they themselves put in place?

Guardian of the Treaties  

The European Commission is not only responsible for writing proposals. As the “Guardian of the Treaties”, the Commission is responsible for overseeing the application of EU law, ensuring that it is adequately applied. Of course, the Commission doesn’t have the capacity to keep track of all 27 countries in detail. National courts also play a crucial role in ensuring the proper application of EU law and act as ‘EU law courts’ when applying EU law. That said, the Commission must step in in cases of ongoing non-compliance or when breaches of EU law have resulted in major environmental and/or social impacts. Unfortunately, the Commission is failing to do so.

Asleep at the wheel 

The Water Framework Directive (WFD) (which requires governments to protect and restore water bodies) and the Habitats Directive (which aims to protect thousands of species and habitats) are just two examples of a systemic failure to implement EU law, with dire consequences. For over 20 years (over 30 for the Habitats Directive) national governments across Europe have failed to apply these Directives and the Commission’s failure to hold countries to account has led to the disastrous degradation of Europe’s waters and ecosystems.  

The Commission has plenty of legal tools at its disposal and there are many examples where they have taken action against governments, including recent non-environmental cases against Poland and Estonia. However, when it comes to upholding environmental law, the Commission is often slow to respond and in the case of the WFD seemingly asleep at the wheel as governments completely failed to reach the Directive’s original 2015 ‘good water status’ target. In fact, enforcement action is still missing and countries are now likely to miss the last deadline of 2027 as well.  

Where priorities lie

So why is environmental law so easily swept aside? It is certainly ‘flashier’ to make new laws than to enforce existing ones, but there are other reasons why the Commission doesn’t prioritise implementation and enforcement when it comes to the environment. Adequate funding and staffing are a huge issue and with resources stretched thin and political opinion appearing to influence decision-making, enforcement often seems to take a back seat. On top of this, environmental matters lack a large direct lobby. It is much harder for NGOs and civil society to monitor and call out environmental damage and while the Aarhus Convention recognises this and has attempted to provide civil society with access to justice, it is often not practical or feasible to go to court at a national level.  

EU environmental law should be more than just words on a page. If we don’t practice what we preach then what real impact does the EU Green Deal have? The laws that make up the Green Deal were created to protect citizens and the environment from the worst impact of the ecological and climate crises and to take steps towards a liveable future. But they will only be successful if the Commission steps up and becomes the guardian it was designed to be.