The Effects of Direct Effects: An Analysis of the Problems surrounding the implementation of EU environmental policies in Ireland and how they might be resolved

This blog post is the third in a series of posts that come from students of our 3rd year undergraduate “Politics and Policy Making in the EU” course. As part of the course, students were asked to write about an issue pertaining to EU politics. The best blog posts have been selected to provide an opportunity to exceptional young scholars at UCD to contribute to the debate on the future of the EU, and to promote the insightful scholarship being undertaken at UCD to a wider public audience. 

Albert Einstein referred to the environment as “everything that’s not me” (McArthur, 1999, p2). The EU Council of Ministers has defined this a little more narrowly as: “Water, air and land and their inter-relationship as well as the relationships between them and any living organism” (European Council, 1967)[1]. This broad definition means that EU environmental policies cover a massively expansive area with a huge need for a cohesive and harmonised strategy. EU environmental law is particularly important in Ireland as it makes up for the deficit of domestic legislation (McGowan, 1999, 175). Environmental policies and law in Ireland are virtually non-existent. Currently, directives are the most common tool employed by the EU in furtherance of environmental policies but there are questions as to how effective this method of EU legislation has been (Tromans, 1995, p 786). One suggested alternative to combat the problem of non-compliance with EU directives is to make greater use of regulations which have direct effect in order to allow individuals to rely on EU environmental laws and policies in national courts (Craig and De Búrca, 2011, p181). However, there is an argument that this method would be an overly expansionist approach by the EU (Haas, 1998, p31).

Historically, the Treaty of Rome contained no specific mention of the environment but this has changed drastically in subsequent treaties, up to and including the Lisbon Treaty (Cahill, 2010, p2-3). However, despite growing attention in recent years, EU law remains relatively soft in this area. The EU can issue policy directions via several instruments. Directives are the most important of these, making up the vast majority of EU law (Scannell, 2006, p16). With directives, the EU sets a general standard which must then be implemented in a member state via domestic legislation allowing greater flexibility (Haas, 1998, p21). Another instrument of the EU is regulations. These have “direct effect”. This means they can be relied on in a national court immediately without the need for domestic legislation incorporating them into the law of that member state (Craig and De Búrca, 2011, p183).

However, EU law is limited by principles such as subsidiarity. Title 1, article 4 of the Treaty of the European Union states that every legal measure passed by the EU should be done so at the lowest possible level (Tromans, 1995, p 786). This means that where an issue can be dealt with effectively by each member state at a national level rather than at an EU level, then they should be. However, many environmental issues such as pollution have a transnational effect and are therefore better dealt with at an EU level than at a national level (Jordan, 1999, p71). The transnational aspect of environmental problems has already been recognised in the European Courts when testing the Wild Birds Directive 409/79. This directive was held by the ECJ to be a trans-frontiers problem which therefore required a common policy by member states. This meant that it passed subsidiarity tests (Meyer, 2010, p186).

To date, the EU has relied largely on recommendations and directives to encourage environmental protection (Gore-Grimes, 2011, p4). However, this approach has seen limited success. Technically, if a member state fails to appropriately implement a directive in reasonable time or to an adequate degree, then they can be taken to the European Courts (Falkner, 2005, p281). Once ruled, case law from the ECJ becomes hard law and is binding. However, this is an incredibly slow process with long waiting times (Haas, 1998, p27). This coupled with lack of serious penalties following a positive ruling make it an inadequate method of enforcement (Jordan, 1999, p87).

Despite, or perhaps due to, the fact that Ireland relies extensively on the EU for its environmental law; this country is a prime culprit for disregarding EU environmental directives (Jordan, 1999, p69). Ireland has been taken to the European Court of Justice over one hundred times concerning failure to implement environmental policies with twenty one on-going issues (Cahill, 2010, p 21). These failures have attracted minor sanctions by the EU but remain largely ignored. In this respect, soft law approaches have failed to adequately ensure environmental protection as they have set out to do. In light of this, and with respect to increasing concern regarding climate change and other environmental issues, it appears that the use of regulations which are directly effective may be more successful in the implementation of EU environmental policies.

Direct effect is often criticised by Eurosceptic theorists as an overly interventionist method which infringes on the sovereignty of states (Jordan, 1999, p90). However, as already outlined, environmental issues are a transnational problem. They exist at an EU level and therefore need to be dealt with at an EU level via a harmonised approach. Direct law exists for situations where recommendations and directives are unsuitable or ineffective at meeting a policies aims and goals (Craig and De Búrca, 2011, p210). As an area of rising concern which has not been adequately dealt with to date, it appears that regulations with direct effect would be far more effective in achieving the goals of EU environmental policies than at present.

Ireland has performed abysmally at adhering to EU directives and standards for environmental concerns up to this point. Increased use of direct effect in this area would not only be more effective but would also be more appropriate considering the cross-frontier nature of environmental problems which makes them more suitably dealt with at an EU level than at a national level. The fact that regulations, which are directly effective, can be used immediately in a national court makes them far stronger in practical effect than directives with regard implementation. It can be argued that this solution presents an overly interventionist approach but it cannot be denied that it is a far more effective method of ensuring environmental protection within the EU.

[1] This has since been updated in Article 130 of the Single European Act to include humans, towns and country planning, land use, waste and water management and the use of natural resources, especially energy.

Clodagh Moriarty is a final year Law with Politics student at UCD. She chose to write about this topic as part of an assignment for her “Politics and Policy of the EU” class because she has a strong interest in environmental protection. In the future, she hopes to continue her studies with a Masters in Environmental Law.

References:

• Cahill, N. (2010) “The Impact of European Environmental Policy in Ireland”. NESC Report No. 122. National Economic and Social Council: Dublin.
• Craig, P. and De Búrca, G. (2011) EU law: text, cases, and materials. Oxford University Press: Oxford. (180-218)
• European Council Directive 79/409/EEC of 2 April 1979.
• European Council Directive, Article 2 of June 27, 1967, 1.
• Falkner, G. (Ed.). (2005). Complying with Europe: EU harmonisation and soft law in the member states. Cambridge University Press.
• Foster, N. (2014) Blackstone’s EU Treaties and Legislation 25^th Edition. Oxford: Oxford University Press.
• Gore-Grimes, J. (2011) Planning and environmental law in Ireland. Dublin : Bloomsbury Professional.
• Haas, P. M. (1998). Compliance with EU directives: insights from international relations and comparative politics. Journal of European Public Policy, 5(1), 17-37.
• Jordan, A. (1999) “The implementation of EU environmental policy: a policy problem without a political solution?”. Environment and Planning C. Government and Policy, 17(1): 69-90.
• McArthur, I. D. (1999) “Introduction to Environmental Health” in Battersby, S and Bassett, W. H. (Eds.). Clay’s Handbook of Environmental Health 18^th Edition. Routlegde: New York.
• McGowan, L. (1999), “Environmental Policy” in Collins, N. (Ed.), Political Issues in Ireland Today, 2nd edition. Manchester: Manchester University Press.
• Meyer, J. (2010). “Saving Migrants: a Transnational Network supporting Supranational Bird Protection Policy in the 1970’s”. In Kaiser, W., Gehler, M. and Leucht, B. (Eds.) Transnational Networks in Regional Integration. Informal Governance in Europe 1945-83. Basingstoke. Palgrave, 176-198.
• Scannell, Y. (1990). Environmental Protection and the Impact of European Community Law. Irish Centre for European Law: Trinity College Dublin.
• Scannell, Y. (1995) “Compliance with EU Directives”. European Environmental Law Review, 4(3): 67-69.
• Scannell, Y. (2006), ‘The Influence of EU Environmental Law in Ireland’, Global Law Quarterly, 3, 16-17.
• Single European Act, 1987, sec 130.
• Consolidated version of the Treaty of the European Union, 1992.
• Tromans, S. (1995). “High talk and low cunning: putting environmental principles into legal practice”. Journal of Planning and Environmental Law, 779-796.