Enforcement of EU Law: Hearing of the European Parliament - Part 2

On the 27th November 2018, the European Parliament hosted an inter-parliamentary meeting on ‘Empowering National Parliament’s and Enforcing Citizens’ Rights in the Implementation and Application of EU Law’ organised by the Committee of Legal Affairs and the Committee of Petitions in conjunction with the European Network of Ombudsmen. Network co-ordinators, Dr Sara Drake and Dr Melanie Smith, were invited as experts to present reports on the Implementation of the Air Passenger Rights Regulation 261/2004, and the challenges facing national parliaments in ensuring the effective application of EU law. Their reports can be found here and here.

After the opening remarks by the Ombudsman and Commission, the session moved on to the case studies. First, an assessment of the implementation of EU Mediation Directive. This is the first EU instrument to encourage ADR in civil and commercial matters thus promoting access to justice and is a step in establishing a common area of justice. It is an essential tool to encourage non-litigious means of redress to alleviate overburdened courts. Professor Giuseppe De Palo, Mitchell Hamline School of Law, USA, assessed the implementation of the EU Mediation Directive. He reported that after 10 years 99% of civil and commercial cases go through court litigation which is putting pressure on civil justice systems which is paid for by general taxation and not directly by the litigants themselves. In his view, the original Directive does not go far enough. He would recommend that ADR is made compulsory with an ‘opt out’ system. He based these recommendations ‘nudge’ theory. He drew on Italy and Turkey as examples of good practice where there is an ‘opt out’ system. In Italy for example, there are between 15-20 times more civil and commercial mediations than any in other Member States. In January 2018, Turkey has adopted the same model as Italy for employment disputes.

The second presentation by Marta Ballesteros, Mileu Law and Policy Consulting, Brussels was on the transposition and implementation of the 2014 Directive on the assessment of the effects of certain public and private projects on the environment. This Directive sought to consolidate and update the existing Environmental Impact Assessment Directive by extending the coverage of environmental issues required in the EIA report to include climate change and biodiversity as well as increased requirements relating to monitoring and public participation and access to information. It seeks to tackle the problem of ‘salami slicing’ large building projects into smaller discrete projects in order to circumnavigate negative environmental impact reports. A particular note of caution of was registered with regards to the – so far – high numbers of Member States failing to implement the Directive and the requirement that Member States would in future need to report data every 6 years to the Commission going forward. This requires a continuous collection of data from day one and Ballesteros predicted that Member States may arrive at the 6 year reporting point having no data to report, undermining the purpose of the Directive. This provides an excellent opportunity for national and European Parliaments to proactively monitor compliance of enforcement of the Directive.

The third presentation by Network Co-ordinator, Dr. Sara Drake, focused on the EU’s Air Passenger Rights Regulation which aims to provide citizens’ with a high level of consumer protection when their air travel in the EU is disrupted. Sara drew attention to the recent European Court of Auditors Report which commends the comprehensive regime in the EU, but has concerns about the lack of passenger awareness and accurate knowledge of their rights, and the difficulties facing passengers seeking redress. Sara’s presentation identified five areas that require attention for compliance to improve: passenger awareness, legal certainty of key provisions including the ‘extraordinary circumstances’ exception, the deterrent effect of national enforcement regimes, continuing support for ADR, and addressing legitimate concerns about the regulatory burden on airlines where travel disruption is cause by third parties, e.g. air traffic control strikes and shortages.

The afternoon session focused on the transposition and implementation of national law at national level, and the challenges for national parliaments. Professor Wim Voermans, University of Leiden, addressed the barriers to implementation of EU law faced by national parliaments and the variable performances across the Member States, noting that ultimately the will of the national administrations is of paramount importance in determining the success of implementation efforts. Dr Melanie Smith, Network Coordinator, then presented an analysis of the infringement data of 2017 and 2018 to date, detailing that various trends in the data: a steady rate of infringements and the predominance of environmental infringements across all stages from EU Pilot to judgment of the Court of Justice under Article 258 and 260 TFEU were all noted, including how these trends related to the Commission’s change in its enforcement approach. Melanie also provided an overview of the EP’s activities in relation to holding the Commission to account in its role as guardian of the treaties over the last 10 years, and encouraged the EP to shift its focus from obtaining data from the EU Pilot (which is being phased out) to requiring a qualitative and quantitative analysis from the EU Commission of its ‘compliance based’ mechanisms of implementation. As the Commission shifts its practice from legal actions to compliance based techniques of enforcement such as ex post legislative guidance, and an increase in database enforcement, the EP must too shift its accountability focus.

More details on this event can be found here.