Change at a stately pace

Enforcement of European Union Environmental Law

May 25, 2007

For a variety of reasons, not every member state of the European Union promptly and completely fulfils its obligation to give proper effect to every law made at European level. The means of enforcing this obligation is an important practical issue and one that tests the fundamental nature of the relationship between states and the institutions they have created.

All aspects of the issue are well served by this study of the enforcement procedures available within the EU (and for purists the differences between European Economic Community, the European Commission and EU are explained).

Environmental law provides an excellent background for this thorough analysis because the environment accounts for a very high proportion of the cases where member states have been subject to enforcement action, including the first instances of states being fined for non-compliance, but the book is in no way limited to the environmental context. It will be equally useful for mainstream EU courses as well as for any with an environmental element, and also for other courses where students need an understanding of what can happen when EU law on any topic is not perfectly implemented and observed.

Its scope extends far beyond what most people will immediately think of as enforcement, namely direct enforcement action taken by the European Commission and leading to the European Court of Justice. It also covers the impact of the doctrines of direct and indirect effect, measures that can be taken against EU institutions, access to justice and to information and the liability of state and EU institutions. Complaints to the European Ombudsman and the European Parliament are also explored, as are the constitutional issues raised by the proposal for EU measures on criminal liability in environmental matters and the role of the Impel network of national regulators.

Key ideas to emerge from the study, and well brought together in the concluding chapter, include the inadequacy of relying on the Commission as the sole enforcer of the law, especially in view of the slowness of the litigation procedure, the absence of inspection powers and the shortage of resources that inevitably leads to a favouring of cases of non-implementation (easily proved from paperwork alone but sometimes merely technical) over those involving bad implementation (always more substantive but requiring investigation of what is happening in practice). There is a need to continue to develop ways for wider civil society to play a role here, and to develop a deeper content for the member states' obligation to "take all appropriate measures... to ensure fulfilment of [their] obligations" (Article ten of the European Community Treaty).

The emphasis throughout is on the EU level, with very little to say about enforcement within any individual member state. Therefore the domestic law options for an individual seeking to get a national authority to comply with or enforce the law are not covered, nor are the ways in which UK governmental, regulatory and judicial authorities perceive and fulfil their roles in the enforcement process.

A strength of this book is that it explains and analyses issues such as direct effect from first principles, rather than taking too much for granted, making it useful for courses where students may not already have a firm grounding in EU law. Thus a good way to approach this book is not as a single textbook but rather as a collection of closely connected essays. On this approach there is more justification for the separate chapters on the Environmental Liability Directive and the proposals on criminal liability and for other passages where there is good, thorough discussion of topics as much for their own sake as for their direct contribution to the argument on enforcement.

Thinking of the book in this way also helps to overcome some of its minor frustrations, such as the absence of detailed cross-references, some repetition, and the fact that useful snippets of information are sometimes buried in unexpected places - for example, the number of Commission legal staff who are engaged in enforcement matters is mentioned in the section on interim relief. Other minor quibbles remain, including some proofreading failures and the fact that cases are referred to throughout only by a shorthand name and number, with neither the full name nor any citation in the law reports. Usually this is fine but in a few instances it may be unhelpful:for example, case C-1/02 referred to here as the Landelijke Vereniging case is referred to by others as the Waddenzee case.

The book's production schedule has been at the slower end of the range for a text in an actively developing area. It is stated as being up to date to the end of 2005, with a preface dated January 2006, while the book bears the date 2007. Inevitably this means that some passages are already dated, namely the consideration of the EU Constitution.

Enforcement of European Union Environmental Law: Legal Issues and Challenges. First Edition

Author - Martin Hedemann-Robinson
Publisher - Routledge-Cavendish
Pages - 573
Price - £41.95
ISBN - 9781859419175

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