Ursula von der Leyen has taken green enforcement behind closed doors

Ursula von der Leyen adopted a signature style for doing business in her first five years as president of the European Commission: Rely on a small team of trusted officials and informal talks if needed to get things done. 
Enforcing environmental law has been no exception.
Under von der Leyen, the EU executive has opened 559 legal proceedings over environmental law violations against EU countries since Dec. 1, 2019. That’s the lowest number in two decades, trailing her predecessor Jean-Claude Juncker, who pursued 645 cases, and José Manuel Barroso, who initiated 1,314 cases during his first term as Commission president and 845 in his second mandate.
Instead, according to the Commission, they’ve opted for a “smart enforcement” approach to ensuring countries comply with legal environmental requirements such as limits on air pollution or minimum protections for threatened species. This means more support for implementing laws in the first place and, more controversially, favoring informal dialogue over potential court battles when things go awry.
The goal is to avoid drawn out court cases that can take years — and lots of bureaucracy — to resolve. But the flip side is that much of the EU’s green enforcement is moving to territory with little transparency or official public records.
The other advantage for von der Leyen, as she embarks on a second term in office, is that she can avoid contentious, public spats with governments she wants to keep on her side — especially on environmental laws, which have become a beloved political punching bag.
It’s a mixture of pragmatic politics and policy that predictably doesn’t sit well with climate advocates. 
“The process is politicized, and it shouldn’t be,” said Anaïs Berthier, head of the environmental legal charity ClientEarth’s Brussels office. She argued that the procedure’s “opaqueness and lack of transparency” has created “a culture of noncompliance.”
“EU environmental legislation is not being correctly implemented, and that’s one of the main reasons why we are failing to tackle the climate and biodiversity crisis,” she said.
The Commission’s legal authority is rooted in the bloc’s treaties, which give Brussels the ability to launch what are known as infringement procedures against any country that fails to implement EU law. 
Initially this process mostly involves a drawn out exchange of letters. But if the two sides can’t settle their disagreements, the EU can take its grievance to the Court of Justice of the EU, which can impose massive fines. 
This intricate legal machinery typically churns through a variety of humdrum EU issues — from maritime spatial planning to motorway concession contracts. But in recent years, it’s also become a political battleground, with the EU bringing rule-of-law cases against Poland and Hungary for eroding their democratic institutions. Both countries reacted with a fountain of Euroskeptic invective that doubled as a rabble-rousing plea for support back home. 
Perhaps to skirt these divisive public conflicts, von der Leyen’s Commission has increasingly opted for confidential negotiation to resolve potential legal breaches. The statistics illustrate the switch — under von der Leyen, environmental legal actions have dropped more than 50 percent since the Commission that governed between 2004 and 2009.
According to Commission spokesperson Tim McPhie, the infringement procedure is now just one of several tools Brussels uses to enforce EU environmental law. For instance, the Commission now offers countries additional technical support to help them implement new legislation correctly — an approach designed to prevent breaches before they occur.
“When preventive measures succeed, infringement procedures become unnecessary,” he said.
Von der Leyen’s Commission has also prioritized what’s known as the EU Pilot Program, an informal dialogue between Brussels and national capitals meant to address possible legal shortcomings. McPhie said between 70 and 80 percent of EU Pilot cases are resolved before escalating to a full legal procedure.
The approach also allows the Commission to save its legal firepower for large, systemic cases with broader environmental implications rather than isolated incidents, added McPhie.
The strategy, he said, is “more efficient in bringing all regions in a Member State towards compliance and driving broader, more impactful improvements.”
But prioritizing efficiency over transparency isn’t to the liking of European lawmakers and isn’t a persuasive argument to many good government types.
“The environment doesn’t have priorities,” said Mariolina Eliantonio, professor of European and Comparative Administrative Law and Procedure at Maastricht University. “Prioritizing some violations of environmental law over others is a political decision.”
What’s more, EU Pilot Program negotiations are typically secret. And even when the EU launches an official infringement procedure, the initial back and forth is typically kept private unless the case reaches the courts. That means documents outlining the EU’s concerns and the country’s response are rarely made public.
This confidentiality isn’t new, but it has become an increasingly common feature in green enforcement. It contributes to creating “a climate of mutual trust” between Brussels and each country, the Commission argued in a 2013 court case, after being sued by a Portuguese NGO for refusing access to some documents related to a closed infringement case. The Commission said it wanted to encourage a “process of negotiation and compromise with a view to an amicable settlement of the dispute.”
But others aren’t so starry eyed. “The process is completely opaque, keeping civil society and the broader public in the dark for years without knowing on what grounds their national government may be in breach of EU environmental legislation,” said Berthier, the green NGO chief. “It’s also unclear whether the European Commission is exerting enough pressure on member states that are violating the law.”
Some politics and law experts have argued that the Commission uses its legal actions — or lack thereof — as a political tool in its relationship with each country, strategically softening its approach to preserve governments’ support for its policy initiatives.
Commission spokesperson McPhie pushed back against this view. “The Commission is fully committed to enforcing EU law and recognizes it as the bedrock for achieving the ambitious objectives of EU policies and legislation,” he said.
Even those who believe the Commission should be stricter conceded that the current system is insufficient to achieve that goal. 
“As it stands, the infringement procedure isn’t fulfilling its intended purpose,” said Eliantonio, the Maastricht University law professor.
In July, European Ombudsman Emily O’Reilly launched an investigation into the EU’s legal actions, expressing concern at the Commission’s years-long backlog and the limited information available to the public on ongoing legal cases.
It can take years, even decades, for an EU country to comply with environmental legislation. For instance, a case against Ireland for failing to adequately define protection areas for birds was launched in 2000 and is still open despite a 2007 court ruling. Greece also has three cases pending related to urban waste water treatment, two of which are over 20 years old.
There is an emerging view in the legal world that such a lengthy and cumbersome procedure might no longer be fit for purpose.
“Perhaps [infringement procedures] should not be the default option anymore, given the climate, biodiversity and environmental crisis we face,” said Eliantonio and her Maastricht University colleague Justine Richelle in a written response to POLITICO. 
But there’s also a plea to keep the politics out of it.
“The European Commission … has a lot of work to do to improve the way they deal with environmental infringement procedures, by making the process less politicized, more neutral, quicker, more independent,” Berthier said. “We are running out of time.”