Shutting down the shop – How the EU Disappoints
Village Magazine, Nov 2014
By Tony Lowes, Friends of the Irish Environment
The European Union cannot achieve its policy goals if environmental law is not applied effectively on the ground. Under the Treaties, while member states are primarily responsible, the Commission’s duties as guardian of the Treaties include the responsibility to ensure the member states comply with the law, including – when necessary – resorting to formal legal proceedings.
Since the introduction of a new mechanism of complaint handling by the European Commission in 2009, however, the formal infringement proceedings that once ensured (slow) progress of justice have been replaced by a system that has no legal basis in European law, offers no transparency to complainants or the public, and is settled in private between Commission Officials and the offending member states representatives without ever reaching open court.
The Commission’s astonishing achievements in Ireland in beginning the end to rampant illegal dumping, kick starting the clean up of our waste system, advancing water quality and effluent control, designating 13% of the country for our shared EU role in protecting European biodiversity, ensuring major projects (well mostly) are assessed for their impact before they were built – even ending indiscriminate salmon drift net fishing at sea – all of these came from individual complaints from Ireland’s residents pursued systematically and formally by the Environmental Directorate’s Compliance Division.
In the 2005 waste case alone, 13 separate complainants, all unknown to each other, had written to the Commission begging for the 1977 Waste Directive to save them from poisoned water, unbreathable air, and infestations of rats.
The Minister paid an indirect complement to the Commission in the Dail this March when patting himself on the back for reducing the number of infringement complaints from the 21 he had inherited to 7. He listed the diverse areas of the environment that the Commission has relentlessly pursued over the past decade:
‘In reducing the number of infringements, my Department has addressed compliance issues through, inter alia, a range of primary and secondary legislation across the broad spectrum of environmental areas such as water services, air quality, waste, energy performance in buildings and planning, as well as targeted measures to provide for consistent and transparent implementation of these legislative provisions.’
Sceptics will be quick to point to lacuna in transposition, implementation and particularly enforcement, but even the most critical would admit that Ireland would far worse place to live in today without this history of litigation.
And as bad as it was, the new system – called PILOT – has effectively brought an end to a decade of achievements.
Even in the promotional literature that the Commission provides it is clear to see what the PILOT system intended. Heralded as ‘A Europe of Results – Applying Community Law’ in 2007, the 2011 review puts it succinctly. PILOT is intended to ‘correct problems related to Member State compliance with EU law at an early stage by finding out-of-court settlements through the establishment of a partnership relationship between the European Commission and Member States.’
The Commission’s 2013 Internal Market Scoreboard credited the introduction of PILOT for a dramatic reduction of infringement proceedings across the EU, ranging from 25% for Greece, 38% for Spain, 37% for Italy, to 49% for Belgium.
In fact, one of the first Irish PILOT cases was over the impact of farmed salmon on protected wild stocks. Opening in 2009, it was closed in 2012 but reopened when documents released under Access to Information showed that the Minister for Agriculture had denied holding and not provided one of the ‘express views’ sought in the original PILOT request – a Report from Inland Fisheries Ireland [IFI] on salmon farming’s impact on wild fish that in fact devastated the Department of Agriculture’s benign position.
The file showed that after repeated written concerns that the Commission had not received the ‘full Irish position on these matters’, Liam Cashman, the long standing acting Head of the Compliance Unit, finally telephoned the EU Secretariat in the Department of Foreign Affairs in September 2010 and told them that unless the IFI Report was received, the Commission would have to ‘reserve the right to move the case to infringement proceedings’.
The result was Cashman’s transfer out of the unit, a move that shocked many and left the Unit without the unparalleled professional skill that had led them to over a decade of successful ECJ proceedings that changed EU (and Irish) Irish law and practice.
A subsequent Irish Ombudsman’s investigation into why the Department had denied holding and failed to pass on these ‘express views’ found that the process is quite informal and operates on a partnership basis between the Commission and Member States.’ Ireland’s ‘Lead Department’, the sole voice allowed to enter responses in the on-line PILOT system, was the Department of Agriculture, whose agencies license and promote fish farming – the subject of the complaint. IFI under the Minister for Communications and Natural Resources, who are charged with protecting wild fish, could not directly communicate their views to the Commission.
The Ombudsman accepted the Department’s position that the IFI report would have had a ‘disastrous effect on Ireland’s reputation, containing serious inaccuracies, omissions of relevant facts, and misleading commentary’. In fact the Ombudsman praised the Department over its concern for Ireland’s reputation: ‘It can not knowingly allow a Report that is inaccurate to be furnished to the Commission.’ Given they told the complainant that that ‘we did not consider any of the reports pertinent to sea lice because they did not have the expertise’ their decision to accept the Department of Agriculture’s version of the sea lice debate is as far from legal tests as one can get.
Worse yet, it used the difference of opinion to justify closing the case, stating that they required ‘uncontested scientific evidence’ when the European Court’s standard is the ‘balance of probability.’
Two other recent PILOT cases have been closed by the Commission with no public notice and no documentation made available. One concerned the continued spreading of slurry beyond the permitted time period – ie extending the slurry spreading into November, when intensive incidents of rainfall are more likely, leading to eutrophicaion of our rivers, lakes, and beaches. The Report requested on foot of the complaint by the Commission from Ireland as part of the Nitrates Regulations Review in December 2013 was not analysed by them in concluding the case and is not publicly available.
Of perhaps more interest at the moment is the third recent (24 October 2014) PILOT closure concerning chemical exceedences of the legal parametric values in Irish water supplies. At concern are trihalomethanes, a group of by products of the chlorination process that are associated with cancer. A 2013 article in the Village, using EPA Drinking Water Report published figures, showed that more than 600,000 consumers were receiving water in excess of the EU and WHO recommended levels.
This PILOT complaint was about the failure of the Irish authorities – the EPA, the Local Authorities, (or Irish Water) – to inform consumers that the water they were consuming exceeded safe chemical limits – a particular concern in this case to pregnant women. The PILOT closure letter blandly stated ‘The competent authorities are also required to inform the consumer and give them the necessary advice.’ There was no request to the Irish authorities to do so and no explanation to the complainant why nothing was being done to ensure the public was informed, even in the case of the 200,000 consumers whose trihalomethane contaminated supplies are currently specifically on the EPA list for urgent ‘Remedial Action’.
In spite of the informal nature of the PILOT proceedings, because they could conceivably lead to infringement proceedings before the Courts the Commission has determined that they are covered by legal exemptions protecting all documents from public release during the course of the procedure.
Last year the European Environmental Law Network joined the voices led by Ludwig Kramer, the highly respected former Head of the EU Environmental Directorate’s Governance Unit, calling for the rights of complainants to see the member states defence before a decision is made; the requirement to publish a register of complaints and their status, the right to act as a ‘friend of the court’ in the proceedings; and a right to a review of PILOT decisions.
Kramer, who first raised his concerns in 2008 when the PILOT was established, concludes: ‘whether an EU Member State applies a provision of EU environmental law or not is not just a matter between that State and the EU Commission. It is a matter of public interest.’