The Impact of Emphasised Subsidiarity on the Enforceability of EU Environmental Quality Legislation – Lessons Learned from the Water Framework Directive

Governing the power division between the European Union and the Member States in policy fields falling under shared competence, the principle of subsidiarity is one of the core constitutional principles of EU law. In EU environmental law, the influence of subsidiarity is visible in various pieces of legislation addressing environmental quality questions, like water, marine environment, biodiversity or air quality. Here, EU legislation focuses on providing general goals for environmental quality and procedural frames for policy development, leaving further elaboration of rules and development of policy instruments largely to the discretion of Member States. Illustrated with the example of the Water Framework Directive, this article establishes, first, that in this design the substantive obligations of Member States often remain legally vague. Second, the article shows how such regulation is also difficult to fit into the frames of the EU law’s centralised enforcement system, the infringement process. The problems of regulatory flexibility are thus aggravated by the difficulties that the Commission encounters in using the infringement process to clarify Member States’ obligations and declare non-compliance. Together, these problems raise serious concerns about the enforceability and effectiveness of EU environmental quality law. These findings not only call for rethinking enforcement approaches for environmental quality legislation but also put into question the suitability of the prevalent regulatory strategy.