As a member of the EU, the Netherlands is obliged to implement and comply with EU law. The European Commission investigates non-compliance of EU-law, for example by means of a formal infringement procedure. The Dutch ministry of Foreign Affairs informs parliament every three months about infringement procedures, and cases before the Court of Justice of the EU (CJEU). However, not much is known about what happens behind the scenes. For example, how often are there EU Pilot procedures, i.e. informal pre-infringement procedures? And do informal procedures help to resolve possible non-compliance and prevent the Commission from starting a formal procedure? A 2018 report by the European Court of Auditors makes an inventarisation of enforcement instruments of the Commission, but it does not provide empirical evidence. On 15 June 2023 the Netherlands Court of Audit published the report EU-law in practice. It examined all formal and informal procedures between the Commission and the Netherlands regarding incorrect or incomplete implementation of EU-law (2010-2020). It also investigated government coordination regarding compliance with EU-law, and what lessons were drawn from closed procedures. In addition, nine cases were analysed to determine how procedures were conducted in practice, and to understand the problems that arose. The nine cases included such topics as the enforcement of Water Framework Directive, Corona Flight Vouchers, Residence Permit Fees for third-country nationals and the European Arrest Warrant. In this post the main results of the report are discussed.
Informal and formal procedures regarding non-compliance with EU-law
The Court of Audit found that informal procedures regarding non-compliance often lead to a satisfactory outcome and prevent the Commission, or another actor, from starting a formal procedure against the Netherlands. More specifically:
- The European Commission received 1,025 complaints involving the Netherlands in 2010-2020. Most of the complaints related to employment and the environment. Of the complaints the Commission found justified, 92 became subject to an informal EU Pilot procedure, and 18 prompted the Commission to launch an infringement procedure.
- In this period, in total 264 EU Pilot procedures were started against the Netherlands. Most of the EU Pilots related to the environment, mobility and transport, and taxation/customs. In 67% of the cases, usually after some information exchange back and forth, the Commission accepted the Netherlands’s response and closed the procedure.
- Another informal mechanism is SOLVIT. It was introduced by the Commission to mediate when a citizen or business from one member state has problems regarding EU-law in another member state. In such cases, a complaint can be submitted to SOLVIT. The audit shows that 443 cases were filed against the Netherlands. A high number of complaints concerned social security and free movement of people. With a resolution rate of 84.2% SOLVIT has a preventive effect. If SOLVIT resolves a case, it is not necessary for a complainant to go to court.
If a dispute is not resolved informally, the Commission can open a formal infringement procedure. When this happens, in most cases the Netherlands has to amend its laws, sometimes after a judgment delivered by the CJEU:
- 67 infringement procedures were started against the Netherlands . At the end of 2020, 49 of the 67 infringement proceedings were closed. In 38 of those the final outcome could be reconstructed: in most cases the Netherlands ultimately complied with the demands by the Commission.
- As part of an infringement procedure, 13 cases were taken to the CJEU. In 6 of the 10 cases in which the CJEU delivered a judgement, it ruled against the Netherlands. The Netherlands had to resolve the non-compliance with EU law.
Another procedure is the so called preliminary procedure. If a national court has doubts about the correct application or interpretation of EU law, it can refer preliminary questions to the CJEU. In the audit period the Netherlands was involved in 605 cases that were brought before the CJEU, in 260 cases following a referral by a Dutch court. In a majority of the cases, the CJEU agreed with the Netherlands’ point of view.
Government coordination of compliance with EU-law
The Court of Audit concludes that, in theory, existing government consultation structures offer many opportunities for substantive coordination and alignment of compliance with EU law. In practice, however, interministerial coordination occurs only when long-running procedures fail to resolve a dispute with the Commission, and it is referred to the CJEU. The coordination and alignment that occurs then, is mostly procedural. There is no substantive coordination among ministries regarding compliance with EU law or, for example, how risks to society of non-compliance can be minimized.
Learning from closed procedures and problem solving by ministries
The audit also shows that ministries rarely evaluate how violations of EU law come about or how they are resolved. Reflection on closed cases is – if at all – usually done in ad hoc discussions and only by individual policy experts. The Court of Audit concludes that ministries do not learn in a structured way from earlier informal or formal procedures regarding non-compliance with EU-law.
The Court also concluded that ministers in general have little information on the problems experienced by citizens and businesses due to the incorrect implementation of EU law. Ministries do not systematically collect information on informal procedures, other than EU Pilot. It is therefore not known if and how ministries handle complaints and notifications regarding incorrect implementation of EU law, or whether the problem is resolved.
Additional results from case studies
In six of the nine case studies, the procedures took a long time to complete, sometimes more than 10 years (e.g. Water Framework Directive). There is often a succession of informal EU Pilots and formal infringement procedures, sometimes leading to a CJEU-case (e.g. Residence permit fees) and/or many preliminary decisions by the CJEU (e.g. European Arrest Warrant). The cases studies confirm that informal procedures are useful, because they can prevent the initiation of formal infringement procedures.
Some case studies show that sometimes ministers test – or even breach – the limits of what is permitted under EU law (e.g. Integrated Approach to Nitrogen, COVID-19 flight vouchers). There is no substantive coordination between ministries during such cases. In extreme cases, procedures regarding the possible violation of EU law can have far-reaching societal consequences (e.g. the Integrated Approach to Nitrogen, Water Framework Directive).
- EU-law in practice: Compliance of the Netherlands with EU-law 2010-2020 - August 31, 2023