EU environmental law forms the foundation of approximately 80% of all national environmental regulations. At the same time, national authorities are struggling with significant difficulties in enforcing EU environmental law, one reason being that violations of environmental law rarely involve infringements of subjective rights. Therefore, in the environmental sector, the EU institutions need to play a crucial role in ensuring compliance with EU law by using or providing supranational compliance assurance instruments.
To enforce EU environmental law on the EU level, the formal infringement procedure has proven to be of limited use: due to its many procedural stages, infringement proceedings are cumbersome, costly and often take too long to prevent irreversible environmental damage. This is why the European Commission – as guardian of the Treaties – has started to look for alternative compliance assurance instruments to complement the traditional, sanction-oriented infringement procedure. As the EU is based on the Member State’s consensus and lacks original state authority, it is not surprising that the European Commission has come to recognize the use of informal cooperation structures to improve Member States’s compliance performance without having to spend time and resources on infringement proceedings.
Practitioner Networks as a Compliance Promotion Tool
Under the term Compliance Promotion, the European Commission takes measures to support Member States in improving the implementation of EU environmental law and avoiding infringements. As a part of this strategic approach, the European Commission has emphasized the benefits of so-called Practitioner Networks, i.e. networks which consist of national experts belonging to the same professional group, whose members voluntarily join forces to improve Member State’s compliance performance in the environmental sector. Main European networks of environmental compliance assurance practitioners are:
- IMPEL: European Union Network for the Implementation and Enforcement of Environmental Law
- EnviCrimeNet: European Network for Environmental Crime
- ENPE: European Network of Prosecutors for the Environment
- EUFJE: European Union Forum of Judges for the Environment.
Among these the most significant is the IMPEL network, which currently consists of 57 environmental authorities from 38 countries. IMPEL activities are focused on the exchange of information and best enforcement practices, capacity building through knowledge transfer and coordinated enforcement action. The network output, e.g. recommendations, guidelines, training programs or IT tools, is made available to national authorities to support them in the day-to-day implementation of EU environmental law.
Over time IMPEL has become a central advisory institution not only for national environmental authorities but also for the European Commission. For instance, when drafting the Recommendation 2001/331/EC on minimum criteria for environmental inspections in the Member States, the European Commission relied on the IMPEL network’s expertise.
Legal framework
Up to now Practitioner Networks in the environmental sector have retained an informal character, as they haven’t been integrated into any legal framework yet. Even though IMPEL has been mentioned by name in Commission communications and in Regulation (EC) No 401/2009, it is not regulated on a national, intergovernmental or EU level.
Practitioner Networks vary in terms of their organization, origin and relation to the EU institutions. However, Practitioner Networks share the common characteristic that they have been developed from intergovernmental initiatives without an EU institution being involved. Joining a network is typically voluntary. There are no regulations formalizing cooperation within the network. As a consequence network members can work on solutions to enforcement problems in an informal, expertise driven setting without bureaucratic hurdles.
In addition, Network members are not obliged to implement network output in national enforcement practice. The final decision to follow guidelines or to use IT tools developed within the network remains with the national authorities. As long as Practitioner Networks in the environmental sector are not equipped with any legal powers or sanction mechanisms to enforce the implementation of network output, there is no need for a legal consolidation. Instead, Practitioner Networks can benefit from the flexibility that comes with legal informality.
As a downside the effectiveness of cooperation in Practitioner Networks depends heavily on the participant’s commitment. Comparable with market economy mechanisms, the relationship between supply and demand plays a role. Only as long as Practitioner Networks offer need-based projects and useful output, national authorities will stay interested in dedicating time and resources to network activities. For this reason, it is difficult to predict whether and for how long Practitioner Networks will remain a stable mechanism to promote compliance assurance in the environmental sector.
Practitioner Networks from the European Commission’s perspective
From the European Commission’s perspective, Practitioner Networks – such as IMPEL – offer not only expertise but also resources. Although the European Commission is not a network member itself, it uses political and financial influence as an external driving force to ensure that the network’s activities serve EU interests. You can say that the European Commission promote its own mission as guardian of the Treaties. While network members work together voluntarily in their own interest to improve the implementation of environmental law, the European Commission can take advantage of their efforts, without having to spend own resources or use legal powers – a clever strategy, given that the EU has little inspection and enforcement powers in the environmental sector.
On the other hand, the European Commission’s influence should be observed with caution: Cooperation in Practitioner Networks (specifically the implementation of network output such as recommendations for action and guidelines in national enforcement practice) can lead to a certain harmonisation of EU environmental law enforcement in the Member States and, in this respect, can have a comparable effect to de facto binding soft law. Even when adopting soft law without formal binding effects the European Commission is subject to legal, especially competence-related requirements. These legal requirements must not be undermined by instrumentalizing informal networks. At least if Practitioner Networks were to be further developed and given own regulatory powers, the European Commission’s approach would raise concerns regarding the rule of law and democratic legitimacy.
Technological progress as a driving force
The concept of national authorities forming networks is no new phenomenon. The idea of supporting the implementation of EU environmental law by working together, emerged in the early 1990’s and led to the establishment of the Network of EC Environmental Enforcement Agencies in Chester – the predecessor of today’s IMPEL network.
However, it was the rapid development in communication and information technology that enabled effective cross-border cooperation to an unimagined extent: geographical distances are no longer an obstacle to quick information exchanges, information can reach numerous authorities within short time and technological progress is constantly creating new perspectives to facilitate the practical implementation of law, e.g. through the development of innovative, web-based applications. With technological progress, the cooperation in Practitioner Networks has become increasingly effective and thus increasingly important.
The European Commission has recognized this potential and put itself into the position of a – in technological terms – ‘host’ or ‘system orchestrator’.
Conclusion
Accelerated by the technological conditions Practitioner Networks have become a relevant addition to the compliance assurance toolkit in EU environmental law.
As networks in the environmental sector are still informal and not legally institutionalized, the increased importance of network cooperation has not changed the European legal framework.
However, a political and strategic shift can be observed: Instead of relying solely on formal infringement proceedings and – in the end – financial sanctions, the European Commission pursues an additional strategy of promoting informal cooperation. As environmental and climate targets become increasingly ambitious and time-critical, combining different strategic approaches may prove invaluable.
In the end Practitioner Networks’ contribution to the improvement of compliance assurance is hard to measure as there are no clear evaluation criteria. Positive feedback by network members points to substantial benefits. However, the impact of informal network cooperation cannot provide solutions to fundamental problems such as imprecise EU legal acts, ambiguities in the distribution of powers in federal states, or deficits in the rule of law.
