Article 228(2) EC and the Enforcement of EC Environmental Law: A Case of Environmental Justice Delayed and Denied? An Analysis of Recent Legal Developments

This article considers the impact of the

infringement action under Art. 228(2) of the EC

Treaty in assisting in the enforcement of EC

environmental law. Its entry into force in November

1993 introduced for the first time in EC law the

possibility of financial sanctions being imposed on EU

Member States by the European Court of Justice over

persistent failures on their part to adhere to

Community law. One might have thought that

Member State performance on implementing EC

environmental legislation would have improved as a

result, the threat of substantial financial sanctions

serving as an effective deterrent against non-compliant

state behaviour. However, experience has indicated

that any initial optimism in the new infringement

procedure has been misplaced in this regard. The

evidence suggests that in many instances Member

States have not been deterred continuing to delay or

obstruct the correct implementation of EC

environmental obligations into national law and

practice. In analysing the evolution of law and practice

of the procedure and in particular its impact on

litigation over breaches of environmental law over the

last decade, this article questions whether the penalty

infringement procedure under Art. 228(2) has proved

itself fit for purpose.