Operationalising effective public enforcement of environmental law in the European Union with a focus on England, Germany and the Netherlands

Abstract

Effective public enforcement of environmental law is a topic explored both by the European Union as well as by several of its Member States, including England, Germany and the Netherlands. In this thesis, an evaluative framework was created and applied to analyse the effectiveness of administrative and criminal enforcement of environmental law in England, Germany and the Netherlands. The starting point for this evaluative framework is the effective enforcement formula first created by the European Court of Justice, which specifies that enforcement by the Member States is to be effective, dissuasive, proportionate and non-discriminatory. The evaluative framework is further based on other European sources, such as the European Commission and the Advocates General of the ECJ, and national literature on effective enforcement in England, Germany and the Netherlands. The main research question explores what the comparative good practices are of the public enforcement organisation and sanctions in England, Germany and the Netherlands in light of the evaluative framework on effective enforcement of environmental law. The research has found that there is a gap in the developments on effective public enforcement of environmental law in the European Union and in England, Germany and the Netherlands. The most recent development on this topic at the level of the European Union has been to prescribe criminal enforcement for certain non-compliance with environmental law to the Member States as it is considered more effective than other types of enforcement. In England, Germany and the Netherlands, however, the development of the enforcement organisation and sanctions for the benefit of effectiveness shows – in all these Member States – a divergent approach. The sanctions’ toolbox of the administrative enforcement organisation in these Member States has increasingly gained criminal sanctions. The criminal enforcement organisation, specifically the Public Prosecutor, has gained independent powers to sanction. Moreover, the criminal enforcement organisation also has available quite a few sanctions that aim to repair environmental non-compliance and damage. The analysis of the enforcement organisation and sanctions in the three Member States shows that good practices can provide inspiration among these Member States and, also, to the European Union – both to the level of the European Union and its development of the concept of effective enforcement, as well as to the other Member States of the European Union. The three Member States also have several aspects in common. One of these commonalities is that effective enforcement is possible through a complementary use of administrative and criminal enforcement, given that, in particular, cooperation between the authorities involved in both types of enforcement is ensured. The concept of effective enforcement that has been developed in the evaluative framework in this research can be used as a template for the Member States and the European Union to (further) develop effective enforcement. Importantly, the developments in the Member States provide essential information to the European Union on the route further development of the concept of effective public enforcement of environmental law can take. The Member States serve therein as a mirror to Europe.