30 Mai 2021

Good European Neighbours

The Turów Case, Interim Measures in Inter-State Cases, and the Rule of Law

On 21 May 2021 the Vice-President of the Court of Justice of the European Union (CJEU), Ms Rosario Silva de Lapuerta granted interim measures in the case of Czech Republic v Poland, ordering Poland to immediately cease lignite extraction activities in the Turów mine.  An action against a Member State which might have breached an EU directive – in this case by extending a lignite mining permit without carrying out an environmental impact assessment – may seem like an ordinary environmental case falling under the remit of EU law. The Czech Republic v Poland case, however, is anything but ordinary for at least two reasons:

Firstly, for the first time an action has been initiated under Article 259 TFEU over breach of environmental laws. This will pave the way for the EU to strengthen the implementation of the international legal principle of good neighbourliness within the supranational legal framework1)see Elena Basheska, ‘The Good Neighbourliness Principle in EU law’ with regard to the interpretation and application of the principle of good neighbourliness in international and EU law.

Secondly, for the first time interim measures have been granted in the context of an action for failure to fulfil obligations under Article 259 TFEU. This creates solid ground for positive change of Member States who may feel encouraged by the CJEU decision to use Article 259 in the future not merely for disputes with a purely political dimension but also for effective enforcement of the Rule of Law as one of the fundamental values of the Union2)see Dimitry Kochenov, ‘Biting Intergovernmentalism: The Case for the Reinvention of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool’ with regard to the potential use of Article 259 TFEU in values enforcement cases.

Inter-State Actions

Usually, it is the Commission that is in charge when a Member State has failed to fulfil its obligations under EU law. Article 258 TFEU is the standard infringement procedure which empowers the Commission to take a Member State to court. Article 259 TFEU is only exceptionally used (only eight times before Czech Republic v Poland). This Treaty provision allows any Member State to initiate an infringement procedure against any other Member State which it considers to be in breach of its obligations under EU law.

The fact that Article 259 TFEU has been rarely ever used testifies to the success of EU mechanisms in preventing direct confrontation between Member States. Indeed, while Article 259 TFEU apparently provides for direct confrontation between Member States, the procedure requires the Commission’s failure to act. A Member State alleging an infringement must first bring the matter to the Commission’s attention, which will then deliver a reasoned opinion and can decide to bring the allegedly infringing state before the CJEU under Article 258 TFEU rather than Article 259 TFEU. It is only in the cases where the Commission does not react, i.e. does not deliver a reasoned opinion within the required time or does so but still takes no further action that one Member State can take another to the CJEU. The Commission’s central role in the commencement of infringement procedures, therefore, contributes significantly to the preservation of friendly relations between Member States by preventing their direct confrontation. Good neighbourly relations within the EU are thus largely maintained through the advanced mechanisms for the settlement of disputes between Member States.

Czech Republic v Poland is, therefore, somewhat untypical case which largely resembles practices of application of good neighbourliness principle in international law. Indeed, unlike in EU law, the practice of environmental inter-state lawsuits has been well established in international law through the rights and duties of states stemming from the principle of good neighbourliness, which applies particularly where activities performed in one state have adverse effect on the environment of another state or states3)see, e.g. Philippe Sands, ‘Environmental Protection in the Twenty First Century: Sustainable Development and International Law’.

The first duty in the light of good neighbourliness principle, from which all other norms emanate, is to refrain from domestic activities which can clearly have harmful effects on the territory of neighbouring states4)Trail Smelter; Legality of the Threat or Use of Nuclear Weapons; Gabčikovo–Nagymaros Project. Other duties of states stemming from the principle of good neighbourliness include: the duty of states to take measures to eliminate or minimize the effects of some domestic activities on neighbouring states or on states of the same area 5)Pulp Mills on the River Uruguay; the duty of information and consultation (or exchange of information) between states on activities and events on their own territories which can clearly affect neighbouring states6)Railway Traffic between Lithuania and Poland; Fisheries Jurisdiction; the duty of tolerance of insignificant damage resulting from interferences caused by various state actions7)Lac Lanoux; and the duty to refrain from actions which could aggravate a conflict and to take measures to attenuate a conflict