Insight: “The Turów mine dispute between Poland and the Czech Republic and the future of inter-State cases before the Court of Justice” by Trajan Shipley
On 26 February 2021, the Czech Republic lodged an application for an inter-State case (Czech Republic v Poland, C-121/21) before the Court of Justice pursuant to Article 259 TFEU over Poland’s alleged violations of environmental assessment rules at the Turów lignite coal mine, located in the Czech-Polish border. This is the first environmental inter-State dispute in the Court’s history, and should a final judgment be delivered, it is likely to become an important contribution to the very limited case law of the Court of Justice regarding inter-State disputes.
The case concerns the cross-border impact of Poland’s mining activities in the Turów mine, and is a highly contentious issue between Poland and the Czech Republic, two Member States that otherwise enjoy very solid bilateral relations. On the one hand, the Czech Republic claims that its citizens across the Polish border are unduly suffering the environmental consequences of the mining activities. On the other hand, Poland contends that the closure of the mine would lead to big economic losses, both in terms of energy supply and jobs. While the Court has already granted the Czech Republic interim relief, the parties are still seeking to settle the dispute via diplomatic channels.
This Insight will examine the dispute in order to assess the nature, history and potential future of inter-State litigation in EU law.
The Turów mine dispute: an example of a cross-border externalities case
Background
The Turów mine, run by Polish State energy company PGE, sits near the 19th-Century spa town of Bogatynia, right on the border with Germany and the Czech Republic.
It generates electricity for about three million Polish households, which amounts to around 7% of the country’s output, an ever-more important figure bearing in mind that Poland generates 65% of its energy resources from coal, more than any other EU Member State. Moreover, the Turów mine extracts lignite coal. The mine provides for the main source of jobs and income in the Polish region surrounding it, which is a stronghold of the ruling Law and Order (PiS) party and therefore carries even bigger political implications.
On the other side of the border, in the Czech Republic, the intense mining activities have caused water shortages, and citizens are struggling to find new communal wells in their surroundings as the ones in their towns are drying up. According to the Czech Foreign Ministry, the lack of water resources comes in addition to significant air pollution stemming from the mine, as lignite coal is considered the most polluting of all coal types.
The inability of both Member States to reach a compromise on the issue led the Czech Republic to formally bring the matter to the attention of the European Commission in September 2020, a first step toward an eventual inter-State application pursuant to Article 259 TFEU.
The Czech Government claimed that Poland had infringed several provisions of EU law by authorising an extension of the concession, until 2044, under which the mine operated, which came to an end in April 2020. It alleged that the Polish Government did so under a law that did not require an environmental impact assessment if certain conditions were met.
In its reasoned opinion, the Commission concluded that Poland had incorrectly transposed and/or applied: (i) the provisions of the Environmental Impact Assessment Directive (2011/92); and (ii) the provisions on Access to Information Directive (2003/4), as regards information to the public and Member States in transboundary consultations, access to justice, as well as the principle of loyal cooperation enshrined in Article 4(3) TEU. However, other alleged infringements related to the Strategic Environmental Assessment Directive (2001/42) and the Water Framework Directive (2000/60), were considered to be unfounded. In delivering the opinion, the Commission indicated that it may refer the case to the Court of Justice, but ultimately left the dispute at the discretion of the Member States.
Proceedings before the Court of Justice
In its formal application, lodged on 26 February 2021, the Czech Republic claims the infringement of the Environmental Impact Assessment, Access to Information and Water Framework Directives, in addition to the principle of sincere cooperation under Article 4(3) TEU. It submits that, inter alia, Polish legislation allows a mining activity authorisation to be extended without an environmental assessment through a non-public procedure. With regard to the Water Framework Directive, it claims that the extension does not cover the project’s entire period from the perspective of its impact on groundwater resources. Finally, the Czech Republic also puts forward several arguments alleging Poland’s failure to allow it, along with the public concerned, to intervene in the procedure.
On 21 May, the Court granted interim measures in favour of the Czech Republic, the first time it has done so in an inter-State case, ordering that Poland immediately cease the extraction activities in the Turów mine. It confirmed that a request for interim relief in Article 259 TFEU proceedings is admissible, rejecting Poland’s argument that the measures were not intended to ensure the full effect of the final judgment and that their granting would produce effects going far beyond the obligations arising from it. It further considered that there existed fumus boni juris, that the claim was urgent and that Poland had not established the irreversible harm that ordering an immediate cessation of activities would cause. The Court’s order also contained an important consideration for EU environmental law, namely that Poland’s alleged harm resulting from the impossibility of carrying out important energy projects and investments ‘cannot, in any event, take precedence over considerations relating to the environment and human health’.
Since then, the Czech Republic has also requested that the Court of Justice impose a daily five million-euro penalty on Poland in view of its non-compliance with the interim measures that had been ordered, while diplomatic negotiations between both parties continue.
The rare nature of inter-State disputes in EU law
Inter-State disputes are largely an exception in the case law of the Court of Justice. This might be due to the fact that, as pointed out by some EU law scholars, the EU legal order ‘is a self-contained regime with no use of state responsibility in the classical sense of international law’, and where disputes are often resolved by non-judicial means, although low numbers of inter-State cases are also to be found in the European Court of Human Rights’ (ECtHR) case law. In both cases, they typically involve highly contentious bilateral disputes with high national interests at stake.
There are two legal pathways to bring inter-State applications in EU law. The first is Article 259 TFEU, which provides for a similar process to infringement proceedings under Article 258, but it is a Member State who initiates the procedure and not the European Commission, its role being limited to the pre-litigation phase by delivering a reasoned opinion on the alleged breach, although it can later still intervene before the Court of Justice or even lodge an infringement action on its own pursuant to Article 258 TFEU. The second is Article 273 TFEU, which grants the inter-State jurisdiction in disputes relating to EU law when the parties specifically concur through ‘a special agreement’ to submit it to the Court of Justice. This provision is meant to keep within the (possible) jurisdiction of the Court of Justice a dispute that, as said by Advocate General Kokott, does not concern the ‘actual interpretation of the Treaties’, but rather relates to their subject matter, as may occur with a bilateral or multilateral non-EU treaty.
Despite these two mechanisms, there have been very limited inter-State cases before the Court of Justice. As detailed in this paper by Graham Butler, under the Article 259 TFEU procedure, there have only been five cases in which the Court of Justice has delivered a judgment (1), plus a sixth one (2) in which proceedings were discontinued after a political agreement was reached. There has only been one inter-State case filed under Article 273 TFEU (3), although it was subject to the interpretation of the Court of Justice in its landmark Pringle (C‑370/12) judgment, whereby it confirmed its jurisdiction over disputes concerning the European Stability Mechanism Treaty pursuant to Article 273.
The reason for there being so few cases under Article 273 TFEU, which has been labelled as an ‘odd little Treaty article’, may be found in the fact that it is a mechanism outside of the normal attributions of the Court of Justice, as jurisdiction only arises in qualified inter se agreements. By contrast, the reason behind a low number of cases under the Article 259 TFEU mechanism, which could be understood as an alternative infringement procedure given that it shares the main characteristics as the Article 258 one, may be the preference of Member States who find themselves in a dispute with another ‘to complain informally to the Commission and leave it to that institution to formally act’ on behalf of the EU. In sum, the ‘self-contained’ nature of the EU legal order, the Commission’s role as chief enforcer of EU law, and the clear limits of the Articles 259 and 273 mechanisms have reduced inter-State cases in EU law to rather more ‘hostile actions’ that are ‘linked more to political arenas’.
The potential for inter-State cases after Turów
The Túrow dispute is already historic in its own right as the first inter-State case on an environmental matter and the first one in which (extensive) interim measures have been granted by the Court of Justice. However, it is likely that the dispute will not see its final day in court and will rather be resolved bilaterally. Poland and the Czech Republic are two Member States that enjoy very deep bilateral relations (both are also parties to the Visegrad Group), and have clearly stated from the outset of the case that they preferred to reach a diplomatic solution. In a press conference in Prague following a round of negotiations in June 2021, the Czech Environment Minister confirmed that both parties were close to an agreement and that current conversations were focused on achieving a long-term deal.
Irrespective of the final outcome, the Túrow case, read in light of some of the latest developments in EU law, illustrates the potential that inter-State disputes may offer to address some of the current and future legal challenges in the EU. A first rather limited conclusion for Member States is that they are useful negotiating tools in addressing a bilateral dispute. Regardless of Poland’s lack of compliance with the Court of Justice’s interim measures, they have undoubtedly given the Czech Republic an advantage in the bilateral talks taking place to reach a potential solution. Even if the Court is used as a proxy and with no sincere intentions to make it the final arbiter of the dispute, inter-State applications allow the Court to develop its case law in innovative ways. That was recently the case in Turów, which saw not only the first interim measures but also an important balance of interests of the parties in a case with very high stakes, with environmental considerations on the one hand and important economic and social implications on the other.
Previous inter-State cases have also allowed the Court to rule on areas of law in which it normally does not have the chance to do so, such as voting rights from a national law perspective with important sovereignty implications (Spain v United Kingdom) or on whether Heads of State may derive rights from the Citizens’ Rights Directive (Hungary v Slovakia). However, it may be difficult to prove that more inter-State cases would have a considerable impact in the development of further case law, particularly when the Commission generally fulfils its job to initiate infringement proceedings pursuant to Article 258 TFEU, even in cases with high political implications, as evidenced by its recent decision to bring proceedings against Germany over the German Constitutional Court’s Weiss judgment.
A departure from the trend of letting the Commission ‘go first’ and act for the EU as a whole in ensuring the application of EU law would probably go hand in hand with a less self-contained, more politicised and contentious EU legal order. However, inter-State cases have the potential to provide a useful tool in enforcing EU values vis-à-vis Member States who do not uphold them. As noted by Dimitry Kochenov, this ‘biting intergovernmentalism’ approach has the advantage of neutralising the argument often made by those Member States that ‘a power-hungry’ EU is violating their sovereignty, besides allowing for a faster adjudication when the Commission fails to act swiftly. The recent discussion in the European Council over Hungary’s LGBT law signals that Member States such as the Netherlands or Luxembourg could be potential candidates to lodge actions should this approach gain traction.
Inter-State cases may also prove useful in dealing with further cases with cross-border implications in the future, where the Commission may prefer to follow the lead of an applicant Member State in order to avoid a politically contentious issue. First, under Article 259 TFEU, they allow for a pre-litigation procedure where the Commission’s role would be similar to that of a legal arbiter instead of one resembling more of a legal prosecutor. That might have been the rationale behind the Commission’s position in the Turów case, and it could be argued that it would also find itself in a more comfortable position if that were its role in rule of law cases brought by other Member States.
Second, Article 273 TFEU, which has been considerably less developed, may offer opportunities to adjudicate future disputes. For example, environmental disputes where consideration is to be made of the sovereign implications over natural resources, such as the currently pending Dispute over the Silala Waters (Chile v. Bolivia) before the International Court of Justice, could be prone to this mechanism. A ‘special agreement’ under Article 273 TFEU does not necessarily mean an existing mechanism at the time of the dispute, and thus Member States could agree to submit it to the Court of Justice as a true inter-State court. The Court signalled this in its last inter-State case before Turów (Republic of Slovenia v Republic of Croatia), where it held that it lacked jurisdiction under Article 259 TFEU to hear a dispute concerning Croatia’s alleged failure to fulfil obligations under the Treaties by not complying with an arbitration award defining its sea and land borders with Slovenia. In spite of this finding, the Court expressly confirmed it would be able to resolve the dispute under a special agreement pursuant to Article 273 TFEU.
While they have been the exception in the case law of the Court of Justice throughout its history, inter-State cases could prove to be a useful tool in future disputes, albeit their limitations and drawbacks, as new challenges to the enforcement of EU law and the nature of the EU legal system emerge.
Trajan Shipley is a Legal Reporter at EU Law Live
(1) The only inter-State actions for failure to fulfil obligations under Article 259 TFEU that have resulted in a judgment delivered by the Court of Justice are: French Republic v United Kingdom of Great Britain and Northern Ireland (C-141/78); Kingdom of Belgium v Kingdom of Spain (C-388/95); Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland (C-145/04); Hungary v Slovak Republic (C-364/10); and Republic of Slovenia v Republic of Croatia (C‑457/18).
(2) In Ireland v French Republic (C-58/77), the first inter-State case before the Court of Justice, no judgment was rendered following a political agreement being reached between the two Member States concerned.
(3) Republic of Austria v Federal Republic of Germany (C-648/15).
