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24 September 2024
Pascal Hansens
Harald Schumann
Maxence Peigné
Infringement cold cases: member states left unpunished for dozens of EU law violations
Infringement cold cases: member states left unpunished for dozens of EU law violations
24 September 2024The European Commission is regularly failing to enforce laws as member states avoid sanctions for more than 40 court-ruled violations, primarily concerning environmental legislation, Investigate Europe analysis reveals.
Walking the peat bogs of the Wicklow Mountains used to be an opportunity to observe one of Ireland’s most magnificent natural sights, the soaring hen harrier. But here in its largest national park, the bird of prey has become an increasingly rare sight.
Intensive farming and extraction for heating has degraded 85 per cent of Ireland’s peatlands, and with it the habitat of the hen harrier. Local conservationist Shane Mc Guinness calls them the “acrobats of the sky” but today only around 100 breeding pairs remain.
“The hen harrier is finding it very hard to survive in these areas, partly because of soil evolution and intensive farming. This peat bog is very damaged and completely dry, just waiting to burn,” says Mc Guinness, pointing to a particularly damaged area of land.
Authorities in Ireland and Brussels have known this for years. In a 2007 ruling, the European Court of Justice (CJEU) condemned Ireland for failing to preserve sufficient natural areas for wild birds and called on the government to reverse the decline. Yet this breach of European law still remains unresolved 17 years later.
Intensive farming and extraction for heating has degraded 85 per cent of Ireland’s peatlands, and with it the habitat of the hen harrier. Local conservationist Shane Mc Guinness calls them the “acrobats of the sky” but today only around 100 breeding pairs remain.
“The hen harrier is finding it very hard to survive in these areas, partly because of soil evolution and intensive farming. This peat bog is very damaged and completely dry, just waiting to burn,” says Mc Guinness, pointing to a particularly damaged area of land.
Authorities in Ireland and Brussels have known this for years. In a 2007 ruling, the European Court of Justice (CJEU) condemned Ireland for failing to preserve sufficient natural areas for wild birds and called on the government to reverse the decline. Yet this breach of European law still remains unresolved 17 years later.
The Wicklow Mountains in Ireland.
Only around 100 breeding pairs of hen harriers are left in Ireland.
Successive Commission Presidents have proclaimed their commitment to defending the rule of law. At the start of her first term as president, Ursula von der Leyen declared that “Lady Justice is blind – she will defend the rule of law wherever it is attacked.”
However, this rhetoric does not always translate into action.
Investigate Europe analysis has found that in more than 40 cases the European Commission has so far let governments off the hook for infringement violations – the penalty process the institution uses if it suspects wrongdoing. In some instances, such as the Ireland case, proceedings have dragged on more than a decade, even after the CJEU determined wrongdoing.
“The Commission should ensure that all adopted EU laws are fully enforced in all member states, but it is not doing so,” says Green MEP Daniel Freund, who believes the institution is “systematically failing to fulfil its role as guardian of the treaty”.
However, this rhetoric does not always translate into action.
Investigate Europe analysis has found that in more than 40 cases the European Commission has so far let governments off the hook for infringement violations – the penalty process the institution uses if it suspects wrongdoing. In some instances, such as the Ireland case, proceedings have dragged on more than a decade, even after the CJEU determined wrongdoing.
“The Commission should ensure that all adopted EU laws are fully enforced in all member states, but it is not doing so,” says Green MEP Daniel Freund, who believes the institution is “systematically failing to fulfil its role as guardian of the treaty”.
“The Commission should ensure all adopted EU laws are fully enforced in all member states, but it is not doing so.”
— Green MEP Daniel Freund
There are 1565 infringement cases currently open against member states accused of not enforcing EU law. The Commission has the power to send unremedied cases to the CJEU, where judges can mandate governments to rectify breaches. But authorities routinely fail to comply. This leaves the Commission with one option: to return to the CJEU and ask the court to impose fines against states.
In October 2021, for example, the CJEU ordered Poland to pay €1 million in daily fines after the then government rejected a ruling saying its move to abolish the country’s independent judiciary breached EU law. Some nations, such as Italy and Greece, have paid millions in fines instead of actively resolving breaches.
The CJEU took only a matter of months to resolve the Polish case. But many others are not resolved so promptly. “The rule of law is not the same for all,” says Alberto Alemanno, a European law professor at the HEC business school in Paris. In many cases “nothing happens” but in others “the Commission takes action in just a few months, such as in Hungarian or Polish cases,” Alemmano says.
As of 1 July 2024, Investigate Europe identified 44 cases against 15 member states where in a first ruling the CJEU determined that governments had breached EU law. In all cases, the national authorities failed to rectify breaches. Despite this, the Commission is yet to return to the court to request any fines. Of these, 33 relate to rules on climate, biodiversity and water quality.
The Ireland case dates back to 1998, when the Commission first opened an infringement case. After years of fruitless negotiations, the Commission took Ireland to court in 2004. In their 2007 decision, the CJEU ordered authorities to immediately "take all necessary measures" to protect endangered bird species.
In October 2021, for example, the CJEU ordered Poland to pay €1 million in daily fines after the then government rejected a ruling saying its move to abolish the country’s independent judiciary breached EU law. Some nations, such as Italy and Greece, have paid millions in fines instead of actively resolving breaches.
The CJEU took only a matter of months to resolve the Polish case. But many others are not resolved so promptly. “The rule of law is not the same for all,” says Alberto Alemanno, a European law professor at the HEC business school in Paris. In many cases “nothing happens” but in others “the Commission takes action in just a few months, such as in Hungarian or Polish cases,” Alemmano says.
As of 1 July 2024, Investigate Europe identified 44 cases against 15 member states where in a first ruling the CJEU determined that governments had breached EU law. In all cases, the national authorities failed to rectify breaches. Despite this, the Commission is yet to return to the court to request any fines. Of these, 33 relate to rules on climate, biodiversity and water quality.
The Ireland case dates back to 1998, when the Commission first opened an infringement case. After years of fruitless negotiations, the Commission took Ireland to court in 2004. In their 2007 decision, the CJEU ordered authorities to immediately "take all necessary measures" to protect endangered bird species.
This is yet to happen, although Irish authorities have submitted occasional “progress reports”. The Commission said in 2021 that there was still no proper plan to protect the hen harrier. According to the NGO Birdwatch Ireland, 63 per cent of all bird species there are experiencing a decline in their populations, a quarter of which are in serious decline.
Still, no fines have been issued and case updates are rare. Information is never revealed about ongoing cases, a Commission spokesperson said.
“The reality is that in most EU countries, the designated protected sites are primarily state-owned lands. However, in Ireland, they are mainly farmlands, which are privately owned. As a result, consultations can take forever,” says a source who has worked on the case. “But there shouldn't be cases left open for 17 years.”
A spokesperson for Ireland’s department of housing, local government and heritage said: “The birds case is an open infringement and, as such, Ireland is not in a position to comment at this time.”
Still, no fines have been issued and case updates are rare. Information is never revealed about ongoing cases, a Commission spokesperson said.
“The reality is that in most EU countries, the designated protected sites are primarily state-owned lands. However, in Ireland, they are mainly farmlands, which are privately owned. As a result, consultations can take forever,” says a source who has worked on the case. “But there shouldn't be cases left open for 17 years.”
A spokesperson for Ireland’s department of housing, local government and heritage said: “The birds case is an open infringement and, as such, Ireland is not in a position to comment at this time.”
“Lady Justice is blind – she will defend the rule of law wherever it is attacked.”
— Ursula von der Leyen
The analysis finds that it takes the Commission on average 12 years to address environmental cases, compared to nine for all others. Greece, with seven convictions, tops the list of countries guilty of environmental offences but where no fines have been issued, followed by Spain with five and Italy, Ireland, Poland and Portugal with three each.
Offences range from dangerous toxic waste dumping to a lack of sewage treatment plants for municipal waste water and failures in nature conservation. Since 2020, the EU high court has denounced 13 member states for exposing citizens to hazardous air pollution. According to the Commission’s own figures, the failure to implement environmental legislation costs the EU economy around €55 billion each year in health costs and indirect costs to the environment.
The CJEU condemned Germany’s federal government in 2021 for “systematically and persistently exceeding” nitrogen dioxide levels in certain areas. In July 2024, the Berlin Higher Administrative Court, following an appeal by NGO Deutsche Umwelthilfe (DUH), reaffirmed that the measures taken by national authorities were not sufficient to comply with EU law. Nonetheless, the Commission has shown no signs of fining German authorities.
According to the EU Environment Agency, the nitrogen oxide pollution in some cities cause around 28,000 premature deaths a year. “It’s crazy that we have to take legal action to ensure compliance with the EU limit values because the German government remains inactive under pressure from the diesel companies and the EU Commission refuses to remedy this breach of the law,” says DUH head Jürgen Resch.
Offences range from dangerous toxic waste dumping to a lack of sewage treatment plants for municipal waste water and failures in nature conservation. Since 2020, the EU high court has denounced 13 member states for exposing citizens to hazardous air pollution. According to the Commission’s own figures, the failure to implement environmental legislation costs the EU economy around €55 billion each year in health costs and indirect costs to the environment.
The CJEU condemned Germany’s federal government in 2021 for “systematically and persistently exceeding” nitrogen dioxide levels in certain areas. In July 2024, the Berlin Higher Administrative Court, following an appeal by NGO Deutsche Umwelthilfe (DUH), reaffirmed that the measures taken by national authorities were not sufficient to comply with EU law. Nonetheless, the Commission has shown no signs of fining German authorities.
According to the EU Environment Agency, the nitrogen oxide pollution in some cities cause around 28,000 premature deaths a year. “It’s crazy that we have to take legal action to ensure compliance with the EU limit values because the German government remains inactive under pressure from the diesel companies and the EU Commission refuses to remedy this breach of the law,” says DUH head Jürgen Resch.
The Doñana National Park is one of the most important wetlands in Europe but the CJEU has ruled that authorities are not adequately protecting it. In a judgement made public in June 2021, it declared that Spain had failed to address illegal water extraction in the Andalusia park, which in turn is disturbing protected wildlife habitats. Water theft often goes unpunished in Spain, although last year a court issued a rare prison sentence and a €5.7 million fine after 19.4 million cubic metres of water was stolen from Doñana. So far prosecutors have only collected €770,000 from the landowners, who used the water to cultivate their rice, cotton and sugar beet crops. Meanwhile, the European Commission is still to resolve its infringement case with the Spanish authorities.
Procedures for environmental breaches take longer because they are complex and cannot be resolved by the adoption of a simple legal text, argues Paul Speight, head of the Commission’s Environmental Compliance Unit. A “reasonable time frame” must therefore be granted. “This sometimes required the suspension of certain cases or the repetition of a procedural step in order to gather sufficient evidence, as in the air quality cases.”
The reluctance to act against errant governments does not stop at ecological problems.
Dairy farmers in Italy received €1.3 billion extra in subsidies than they were entitled to for 14 years until 2009. The Commission brought an infringement case to the CJEU and the high court found Italy guilty in 2018. But the co-governing Lega party successfully opposed the decision and the Commission let the case rest.
Procedures for environmental breaches take longer because they are complex and cannot be resolved by the adoption of a simple legal text, argues Paul Speight, head of the Commission’s Environmental Compliance Unit. A “reasonable time frame” must therefore be granted. “This sometimes required the suspension of certain cases or the repetition of a procedural step in order to gather sufficient evidence, as in the air quality cases.”
The reluctance to act against errant governments does not stop at ecological problems.
Dairy farmers in Italy received €1.3 billion extra in subsidies than they were entitled to for 14 years until 2009. The Commission brought an infringement case to the CJEU and the high court found Italy guilty in 2018. But the co-governing Lega party successfully opposed the decision and the Commission let the case rest.
“The process of addressing and rectifying major infringements is critical, yet it currently faces challenges that diminish its effectiveness.”
— Enrico Letta
The Commission’s lack of action and transparency is a concern for EU Ombudsman Emily O'Reilly, and frustrating for complainants, she says. “When a breach of law is reported, the Commission sends complainants holding replies that contain standardised wording, without any specific information regarding their case,” O'Reilly stated in July when launching an investigation into the practices.
"The process of addressing and rectifying major infringements is critical, yet it currently faces challenges that diminish its effectiveness,” former Italian Prime Minister Enrico Letta, who earlier this year presented a report on the future of the single market to the European institutions, recently said.
One top official in Brussels explained that infringement decisions are often “politicised”. For instance, the Commission may avoid legal actions during national elections to prevent appearing to meddle. Several sources said that cases are largely determined by von der Leyen and her inner circle of legal advisors.
"The process of addressing and rectifying major infringements is critical, yet it currently faces challenges that diminish its effectiveness,” former Italian Prime Minister Enrico Letta, who earlier this year presented a report on the future of the single market to the European institutions, recently said.
One top official in Brussels explained that infringement decisions are often “politicised”. For instance, the Commission may avoid legal actions during national elections to prevent appearing to meddle. Several sources said that cases are largely determined by von der Leyen and her inner circle of legal advisors.
Infringement cases are largely determined by Ursula von der Leyen and her legal advisors.
Protestors in Krakow after the government ruled that the Polish constitution takes precedent over EU law.
"We have created a monster, a highly politicised Commission with extreme discretionary powers, without any means of control for the citizens,” says Alberto Alemanno, who is also founder of the Good Lobby, a non-profit promoting corporate transparency.
Since 2012, the Commission said it would mainly focus on systemic problems, which according to Alemanno, stifles the possibility of legal actions for other breaches. At the same time, however, the CJEU has granted the Commission almost “unconditional discretion” over the process. "Entrusting full discretion to an institution without making it accountable for its action and inaction raises a major democratic legitimacy problem,” he adds. States have realised that even if they do not comply, “little will happen to them in most cases”.
Member states' efforts to slash EU budgets, meanwhile, have left the Commission under-resourced to tackle cases. The institution has no investigative body of its own and is largely reliant on information from complainants, whistle-blowers and national governments.
Since 2012, the Commission said it would mainly focus on systemic problems, which according to Alemanno, stifles the possibility of legal actions for other breaches. At the same time, however, the CJEU has granted the Commission almost “unconditional discretion” over the process. "Entrusting full discretion to an institution without making it accountable for its action and inaction raises a major democratic legitimacy problem,” he adds. States have realised that even if they do not comply, “little will happen to them in most cases”.
Member states' efforts to slash EU budgets, meanwhile, have left the Commission under-resourced to tackle cases. The institution has no investigative body of its own and is largely reliant on information from complainants, whistle-blowers and national governments.
“We have created a monster, a highly politicised Commission with extreme discretionary powers, without any means of control for the citizens.”
— Alberto Alemanno
Ombudsman O'Reilly told Investigate Europe: "The Commission's core role is to guard the treaties and not to be overly concerned about the politics which will come and go and change.” She said that some cases take an “inordinate amount of time” to process often because cases are simply not being worked on. “There may be legitimate reasons why the file has gone cold for a little bit, but at least tell the people who have made the complaint,” O’Reilly added.
Arianna Podesta, a deputy spokesperson for the Commission, said the institution was “very transparent” in its approach and defended its work on infringement cases.
“I think we are uniform in the application of the EU rules. If the member states have not transposed by the deadline, we then proceed with the infringement procedure… But what we do is that we look at all member states and see what is the situation in a majority of member states, and then we will take cases in batches,” Podesta said.
Arianna Podesta, a deputy spokesperson for the Commission, said the institution was “very transparent” in its approach and defended its work on infringement cases.
“I think we are uniform in the application of the EU rules. If the member states have not transposed by the deadline, we then proceed with the infringement procedure… But what we do is that we look at all member states and see what is the situation in a majority of member states, and then we will take cases in batches,” Podesta said.
Solutions to the infringement issues are yet to come. Daniel Kelemen, a law professor at Georgetown University and author of several books on EU policy, is clear in what he thinks should be done. “If anyone wants to listen to my advice, I think that the decisions over infringements and whether to pursue these law enforcement actions, should be taken out of the hands of the Commission and put in a kind of separate body like a public prosecutor.”
The European Parliament said in July that it wants to strengthen its framework of cooperation with the Commission, and in turn increase its accountability in areas such as infringement.
Whether this would improve the glacial pace it takes the Commission to address certain breaches remains to be seen. And while the inertia on infringement persists, in the Wicklow Mountains time is running out for the hen harrier. “In a place like this, you should be able to find a good number of birds of prey feeding on a multitude of passerines – but that's no longer the case,” conservationist Shane Mc Guinness says.
Editor: Chris Matthews
The European Parliament said in July that it wants to strengthen its framework of cooperation with the Commission, and in turn increase its accountability in areas such as infringement.
Whether this would improve the glacial pace it takes the Commission to address certain breaches remains to be seen. And while the inertia on infringement persists, in the Wicklow Mountains time is running out for the hen harrier. “In a place like this, you should be able to find a good number of birds of prey feeding on a multitude of passerines – but that's no longer the case,” conservationist Shane Mc Guinness says.
Editor: Chris Matthews