Procedure before the Commission
The Commission may become aware of violations of the EU regulatory framework in several ways. The simplest, although it mainly captures formal shortcomings in implementation, is when it is clear from a Member State’s reporting or lack of reporting that a directive is not being implemented properly. Most cases of violation of environmental law that the Commission initiates concern incorrect implementation or other formal errors, rather than breaches due to the actual application of EU law in Member States. This is probably because it is easier for the Commission to check and prove formal shortcomings, not least through the reports, compared to incorrect application in concrete cases.26 During 2015, the Commission launched forty environment-related infringement proceedings before the Court.27
In addition to the formal contact channels, the Commission receives information on Member States’ environmental performance through informal channels, where environmental organisations in the Member States play an important role. There are also several federations of European environmental organisations, including EEB,28 which has more than 140 member organisations from thirty- one countries and offices in Brussels. The Commission also receives numerous complaints from EU citizens every year, of which a significant part concerns the environment.29 There are virtually no formal requirements for the design of a complaint, but to facilitate the procedure, the Commission has published a special form for this purpose.[1] [2] [3] [4] [5] [6] A concrete and highlighted example of the individual’s role in this respect is the Blackpool case.31 An English lady who was dissatisfied with the quality of bathing water in the Irish Sea at Blackpool sent a postcard to the Commission in 1991, urging it to rescue Britain’s beaches. That was enough for the Commission to eventually bring infringement proceedings against the UK before the Court of Justice. The Court found in its 1993 ruling that Britain had failed in its duty to take all necessary measures to ensure that bathing water quality around Blackpool and Southport remained within the limits set by the Bathing Water Directive.[7]2
The Commission registers all complaints received. This enables the individual to follow the entire procedure and be informed of all actions taken by the Commission. She or he, however, has no right of appeal if the Commission decides not to investigate further the grounds for the complaint, or if after examination decides not to proceed.33 In late 2015 the Commission had a total of 3,750 complaints to deal with.З[8] [9]
Before initiating an infringement procedure, which may lead to infringement proceedings, the Commission conducts its own investigations and makes informal contact with Member States’ representatives to clarify the facts and hopefully solve the problem. If these efforts do not produce results, an infringement procedure may be opened against the Member State under Article 258 TFEU. Importantly, however, the Commission itself decides whether, and if so when, it will initiate infringement proceedings.
The actual infringement procedure begins with a letter of formal notice in which the Commission explains what legal obligation has been breached and urges the defaulting State to submit its comments regarding the alleged infringement within a certain time, usually a few months. If the Member State’s response is not satisfactory, or if it is missing completely, the Commission can take the next step and send the Member State concerned a reasoned opinion. It must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil an EU law obligation. The reasoned opinion delimits the subject matter of the subsequent proceedings and is in that way decisive for what arguments the Commission may plead before the Court.35 Here too, the Member State normally has a couple of months to submit its comments.
The Commission is not entitled to carry out inspections relating to the status of the environment in the Member States against their will. However, Member States are required to cooperate in good faith in Commission investigations under Article 258 TFEU, and to provide all the information requested^[10]
- [1] P Wenneras The Enforcement of EC Environmental Law (Oxford University Press, 2007) 255.
- [2] For statistics concerning infringements of environmental legislation by various Member States,see
- [3] The European Environmental Bureau. See
- [4] During 2014, there were 508 complaints relating to the environmental policy area: COM(2015)329 final (n 24) 8.
- [5] Kramer EU Environmental Law (n 20) 403.
- [6] Case C-56/90 Commission v United Kingdom ECLI:EU:C:1993:307.
- [7] 2 Council Directive 76/ 160/EEC concerning the quality of bathing water [1976] OJ L 31/1. Thisdirective is replaced by Directive 2006/7/EC of the European Parliament and of the Council of 15February 2006 concerning the management of bathing water quality [2006] OJ L 64/37. 33 CaseT-247/04 Aseprofar and Others ECLI:EU:T:2005:327, para 40.
- [8] 34 COM(2015) 329 final (n 24) 8.
- [9] 35 Case C-358/01 Commission v Spain ECLI:EU:C:2003:599, paras 26—29 which also define therelation between the letter of formal notice and the reasoned opinion.
- [10] 34 Case C-478/01 Commission v Luxemburg ECLI:EU:C:2003:134, para 24.
