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

• DOI: http://doi.org/10.1111/eulj.12076
• Published date: 01 September 2014
• Date: 01 September 2014
• Author: Emilia Korkea‐aho

Watering Down the Court of Justice?

The Dynamics between Network

Implementation and Article 258

TFEU Litigation

Emilia Korkea-aho*

Abstract: With the establishment of an administrative network to manage implementa-

tion 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 impor-

tant 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 imple-

mentation 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 partici-

pants. The results show how the function and exercise of judicial enforcement is influ-

enced by the ways in which legislation is implemented.

I Introduction

With the adoption of a number of major legislative initiatives, EU environmental

lawmakers have been busy in recent years. Important legislative pieces such as the

Chemicals Regulation (REACH)1and the Water Framework Directive (WFD)2have

been successfully pushed through; and as a result, the current focus of, and challenge

for, EU environmental law lies in implementation. The full scope of this challenge is

best captured by considering the norms that have been used. The present nature

of EU environmental legislation is that of a framework. Even REACH, which is

* Academy of Finland Postdoctoral Researcher, Centre of Excellence in Foundations of European Law

and Polity, University of Helsinki. The author wishes to thank the participants of the conference ‘Courts

and Governance’, held in Florence 16–17 June 2011 for many useful comments as well as the anonymous

reviewer whose comments helped me to clarify and develop several points. Thanks are also due to

Joanne Scott, Panu Minkkinen and Suvi Sankari for their help along the way.

1Reg 06/1907.

2Dir 00/60.

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European Law Journal, Vol. 20, No. 5, September 2014, pp. 649–666.

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technically a regulation, has been described as a framework regulation.3Many poten-

tially important and substantially demanding choices are frequently left to Member

States to be filled out at the implementation stage. This legislative choice has made it

more difficult for the Commission to fulfill its tasks pursuant to Article 258 Treaty on

the Functioning of the European Union (TFEU), so that the Commission, together

with Member States and stakeholders, has devised strategies and policy initiatives in

order to ensure timely implementation and to ease its task in monitoring Member

States. For instance, the implementation of the WFD, which forms the subject matter

of this article, has been entrusted to a network of national and transnational author-

ities, going by the name of the Common Implementation Strategy (CIS). While this

and other new implementation practices have been documented and scrutinised in

recent years, in particular by those interested in new governance, the ensuing impli-

cations for the courts have received less attention.4

The WFD and its enforcement will be analysed from an experimentalist perspec-

tive. The notion of experimentalism is used to describe and distinguish governance

processes that continuously scrutinise their own background premises and deploy the

results of this continuous scrutiny in resetting goals.5As a term, governance subsumes

a wide variety of institutional forms, from legislation to less formal categories of

decision-making. Although experimentalism does not discriminate between institu-

tions, it demarcates its scope by way of four elements. It is generally recognised that

experimentalism creates a policy cycle: first, actors agree on general framework goals

at the central level; second, lower-level actors decide on means to achieve those goals;

third, in return for the discretion that lower-level units enjoy in implementation of

framework goals, they must report on how they are performing; and fourth, frame-

work goals are revised and adjusted in the light of new information from reporting

practices. This institutional dynamics is reflected in many instances of EU law, among

others in the WFD.6The directive contains framework norms, prompting common

implementation efforts among Member States, experts and other actors and promot-

ing compliance in an evolving EU water regime.

In this article, my aim is to analyse and evaluate how these important changes to

implementation practices (Sections II and III) affect the role played by the Court of

Justice (CoJ) with respect to Article 258 TFEU. Although this article explicitly

focuses on the WFD, its observations are important, for they apply to a much wider

variety of contexts. EU law deploys framework type regulation more generally, which

shifts attention to implementation and leads us to consider how commitments made

in implementation will escalate and impact enforcement.7The examination of the

3F. Fleurke and H. Somsen, ‘Precautionary Regulation of Chemical Risk: How REACH Confronts the

Regulatory Challenges of Scale, Uncertainty, Complexity and Innovation’, (2011) 48 Common Market

Law Review 365.

4See, however, J. Scott and J. Holder, ‘Law and New Environmental Governance in the European

Union’, in G. de Búrca and J. Scott (eds), Law and New Governance in the EU and the US (Hart

Publishing, 2006) 227 fn 72.

5For background theory, see C. Sabel and J. Zeitlin, ‘Learning from Difference: The New Architecture of

Experimentalist Governance in the EU’, in C. F. Sabel and J. Zeitlin (eds), Experimentalist Governance

in the European Union. Towards a New Architecture (Oxford University Press, 2010), at 1–28.

6For WFD as an instance of experimentalism, see I. von Homeyer, ‘Emerging Experimentalism in EU

Environmental Governance, op cit 5supra, 121–150.

7This way of framing the issue brings the article in the vicinity of legalisation literature in international

law that considers how formal institutions, such as courts, can be undermined (or affirmed) by informal

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