Infringement Observatory June update

The European Commission has launched several new infringement procedures in June, among others concerning Sweden’s protection against cyberattacks, how to conduct environmental impact assessments in Germany and protection of Natura 2000 sites in Poland.

An infringement procedure is a legal action pursued by the Commission against Member States for failing to fulfil their obligations under EU law. The procedures aim to ensure the proper application of EU law and covers a wide range of sectors and policy areas.

 A few key decisions from June:

• Environmental assessment

The Commission brings challenge to Estonia’s legal framework regarding environmental assessment under directive 2001/42/EC. In accordance with the directive, an environmental assessment must be pursued when planning projects and activities that affects a Natura 2000 area. According to the Commission, Estonia has not performed an environmental assessment in accordance with EU law on 217 occasions. Consequently, the Commission does not consider Estonia’s legal system to provide for appropriate environmental assessment and requests, in a letter of formal notice, the Estonian government to take appropriate measures.

• Environmental impact assessment

 The Commission calls on Germany to ensure access to justice when authorising transport infrastructure projects. Directive 2011/92/EC allows for a transport infrastructure project to be exempted from the rules concerning public consultation if the projects are decided through a legislative act. However, to safeguard the public interest, legal review by a national court must be made possible. In Germany that entails bringing action to the Federal Constitutional Court, as the only fora, where individuals can make claims of repeal. Consequently, since only a limited number of individuals can make such claims the Commission does not consider the system to fulfil the access to justice criteria under the directive.

• Natura 2000

The Commission has launched a procedure against Poland for not protecting its Natura 2000 areas under directive 92/43/EEC (Habitats directive) and under directive 2009/147/EC (Birds directive). Poland remains to designate 655 special areas of conservation and has failed to adopt site-specific conservation objectives. The Commission has launched a similar procedure against Cyprus as well, asserting that Cyprus has not set proper conservation objectives with regard to the Habitats directive.

• Cyberattacks, Sweden

The Commission calls on Sweden to comply with the EU cyberattacks directive (directive 2013/40/EU). The directives purpose is to set up a legal framework in the fight against cybercrime. According to the Commission, Sweden has transposed the directive incorrectly, in particular regarding the provisions on penalty levels, illegal interception and criminalisation of production and use of tools to commit certain offences of cybercrime. Sweden has two months to respond to the Commission’s criticism.

• Primacy of EU law

The Commission has initiated an infringement procedure against Germany for violation of EU’s fundamental principles. A German federal constitutional court has declared that a judgement by the CJEU is “ultra vires”, thus obstructing the legal effect of the CJEU’s decisions. According to the Commission the German constitutional court’s decision breaches the principle of autonomy, primacy, effectiveness and uniform application of EU law.

• Posting of workers

Commission calls on AUSTRIA and SLOVENIA to comply with amended rules in the revised posting of workers directive (directive 2018/957/EU). The directive ensures a level playing field for employers and should have been transposed 30 July 2020.