Waste case to boost EU enforcement powers?

The European court of justice has been invited to find Ireland guilty of a "general and structural" failure to implement EU waste law.

If the court follows an advisory opinion released on Thursday it would mark a significant innovation in EU legal practice. It would also strengthen the European Commission’s ability to clamp down on the causes, not just the symptoms, of poor national implementation of EU laws.

In a case brought against Ireland in 2001, the Commission grouped 12 cases of alleged non-compliance with the EU’s waste directive. Instead of asking simply for the government to be condemned on each individual point, it also requested that the court infer from the specific failures also a structural problem of compliance. Until now the court has never made such a finding.

In his advisory opinion for scrutiny by a panel of judges, court advocate general Lendeert Geelhoed backs the Commission’s argument. The significance of the case extends well beyond the immediate issue waste law implementation by Ireland to other EU countries and potentially to other environmental laws that require member states to achieve set outcomes.

The Commission is already seeking similar findings of general failure to implement the framework waste directive against Greece, France and Italy. In future the EU executive could well seek general failure rulings relating to the habitats and wild birds directives and the environmental impact assessment directive, according to officials.

In the immediate case at issue, the Commission brought together a mass of evidence to back 12 specific allegations of various failures in Ireland to implement the EU waste directive. These include cases of waste disposal without a permit, failure by authorities to require permits, and operation of waste concerns without licensing, registration or inspection.

Mr Geelhoed notes that the directive imposes what he calls a “seamless chain of responsibility” to avoid environmental or health impacts from waste handling or disposal. He agrees with the Commission that the failures demonstrated in Ireland’s implementation strike at the heart of this responsibility.

His also develops for the first time a legal framework for gauging possible general failures in EU law implementation. They must be sufficiently large in scale, he suggests, be persistent over time, and be sufficiently serious in terms of undermining the aims of the relevant directive.

The court should give a full ruling on the case in a few months time.

Republished with permission of Environment Daily

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