Watering Down the Court of Justice? The Dynamics between Network Implementation and Article 258 TFEU Litigation

Abstract

With the establishment of an administrative network to manage implementation of the Water Framework Directive (WFD), a more consensual approach to judicial enforcement seemed like a natural next step. This anticipation was partially derived from the experimentalist nature of the WFD, requiring concerted action in the specification and application of its open-ended and broad provisions. This article assesses how important changes in WFD implementation practices shape the role played by the Court of Justice with respect to Article 258 Treaty on the Functioning of the European Union. The examination of the WFD litigation reveals interesting tensions. Network-based implementation practices keep Member States accountable for the progress of implementation and make a subsequent legal action swifter. At the same time, implementation practices remove from courts those issues that may be better solved by network participants. The results show how the function and exercise of judicial enforcement is influenced by the ways in which legislation is implemented.

Enforcing EU environmental policy effectively: international influences, current barriers and possible solutions

“…To this end, several guidance documents have been elaborated with the aim of providing technical and scientific support for the Member States in the implementation of the WFD: 'They embody an impressive number of technical specifications, clarifications and recommendations on a variety of issues pertinent to implementation of the WFD'. 89 Once again, it can be argued that guidance documents lead to better enforcement of environmental law as they provide Member States with detailed information on how to act in accordance with the WFD and therefore avoid infringement proceedings.…”

“…Also, it seems to have been useful for the Commission for gathering information which has subsequently been used in infringement proceedings. 106 In addition, the IED features an interesting system of cooperation linked to the so-called 'Seville process' aimed at identifying the 'best available techniques' standards. This process evolved initially outside the framework of the IPPC Directive, the predecessor to the IED.…”

Soft law and courts: saviours or saboteurs of the rule of (soft) law?

“…Equally forcefully, others have noted that rather than erecting a firewall between courts and soft law instruments, effective judicial protection instead requires that courts engage with soft law instruments (Eliantonio 2018). In the same vein, it is argued that the interpretation of the law is not possible if the law is understood only as comprising rules adopted by legislatures (Scott 2011;Korkea-aho 2014).…”

Helping Loose Ends Meet? The Judicial Acknowledgement of Soft Law as a Tool of Multi-Level Governance

“…problems are solved by participants, without judicial intervention. 136 As briefly outlined in the previous section, competition case law admits legally binding effects of soft law for the European Commission on the basis of a mechanism based on general principles of law (such as legitimate expectations, legal certainty, transparency). 137 Thus, hybrid interactions between adjudication and soft law occur in this sector 138 as the argumentation of the Court, based on legal principles, is inserted in new soft issued at the Commission level 139 and then back again in new judgments of the EU Courts, 140 completing some sort of 'virtuous circle'.…”