Has the Pilot Been Grounded? The Decline of the EU Pilot in EU Environmental Law Enforcement

The EU Pilot is an informal mechanism for structured dialogue between the EU Commission and Member States that the Commission uses to ‘address potential breaches of EU law’. The aim of the dialogue facilitated through the EU Pilot is to either resolve the issue at hand or help the Commission identify potential breaches of EU law requiring the launch of an infringement procedure pursuant to Article 258 TFEU. Since the mechanism entered into force in April 2008, almost 10,000 cases have been filed through the EU Pilot, with around 2,150 of these concerning potential breaches of EU environmental law. In fact, in ten of the 16 years between 2008 and 2023, environmental cases constituted the largest subsection of cases filed through the EU Pilot.

In 2017, the Commission ‘downgraded’ the EU Pilot’s role in enforcing EU law, choosing instead to rely on the infringement procedure as the ‘default mechanism’ to ensure compliance with EU law. As will be explained later in this post, this caused a significant drop in the overall number of new EU Pilot cases, but it did not change the proportion of environmental cases, which remained relatively unchanged in the short term. The long-term trend, however, shows a downward decline in environmental cases as a percentage of total EU Pilot cases, culminating in a sharp drop to around two per cent in 2022 and 2023, down from about one-third in the EU Pilot’s early years (Table 1).

At the same time, the number of new infringement procedures has plummeted, especially since 2004. The Commission, for example, referred 259 infringement cases to the European Court of Justice in 2004 but only 35 in 2022 and 49 in 2023. Not only does this raise general questions about whether the Commission – as the ‘Guardian of the Treaties’ – adequately enforces EU law. It also raises more specific questions about why the Commission no longer pursues potential environmental infringement through the EU Pilot and about the future role of the EU Pilot in enforcing the Union’s environmental acquis.

This blog post looks at the latter questions by analysing a dataset of all EU Pilot cases spanning the period from when the EU Pilot became active in April 2008 to 2023. First, the post considers the EU Pilot’s functioning and role in shaping the enforcement of EU law in the past 16 years. Then, it looks closer at the trends in the Commission’s use of the EU Pilot and links them to the general trends in the Commission’s enforcement of EU environmental law. Finally, the post explores potential reasons for the Commission’s near-complete halt in launching new environmental EU Pilot cases over the past two years.

From the outset, it should be noted that the Commission publishes only very little information about the EU Pilot and the potential violations processed through the procedure. This has not only led to the EU Ombudsman criticising – and the EU Parliament ‘deploring’ – the EU Pilot’s lack of transparency, but it also makes it challenging to research. Lacking a central repository, the data supporting this post’s findings have been pieced together from yearly enforcement reports and, therefore, represent the author’s best efforts to create an accurate picture of the EU Pilot’s role in the Commission’s enforcement of EU environmental law.

Table 1: Trend – Environmental Cases as a Percentage of New EU Pilot Cases

The Functioning of the EU Pilot

The EU Pilot was first envisioned in the 2007 Commission Communication ‘A Europe of Results – Applying Community Law’. The idea behind the EU Pilot is to make the Commission and Member States work together more closely and less formally. The aim of this is to identify and correct violations of EU law at an early stage without recourse to infringement proceedings. The EU Pilot thus functions as an alternative dispute resolution mechanism through which the Commission and Member States can resolve potential violations of EU law before escalating them to the formal (and public) infringement procedure.

When the EU Pilot was launched in April 2008, 15 Member States volunteered to participate. Subsequently, in 2010, three Member States joined, followed by seven in 2011 and two more in 2012. Croatia became the final participant in the EU Pilot upon the country’s accession to the EU in July 2013. The expansion of participating Member States in the EU Pilot’s early years likely led to the substantial rise in new EU Pilot cases, particularly until 2011, when the number of new cases rose to approximately 1,200 (Table 2).

The EU Pilot functions as a database in which the Commission can file potential breaches of EU law. After a potential breach has been filed in the database, a ‘Central Contact Point’ in the Member State concerned will receive a notification through the database, after which the Member State will have ten weeks to report back to the Commission. Following the Member State’s response, the Commission will then have another ten weeks to assess the response of the Member State. If the Commission is satisfied with the response, the case will be closed; if it is not satisfied, the Commission may indicate further treatment and launch an infringement procedure as provided for in Articles 258 (and 260) TFEU. 

Table 2: Development – EU Pilot Cases from 2008 to 2023

Whether the Commission launches an EU Pilot case – or an infringement procedure – is discretionary. The Commission sources potential violations partly from complaints and its own initiative investigations. For example, from the 2,351 complaints received in 2023, the Commission opened 92 EU Pilot cases and launched 18 infringement procedures. It closed around 2,100 complaints without taking further action. The remaining EU Pilot cases (161) and infringement procedures (511) opened in 2023 were sourced from the Commission’s own investigations.

Because of the EU Pilot’s opaque nature as an informal dialogue between Member States and the Commission, the exact role of the EU Pilot in the overall enforcement of EU law is difficult to determine. There is little doubt, however, that the EU Pilot has been instrumental in shaping the enforcement of EU law since its inception in 2008, in particular in the years between 2008 and 2016, when the Commission ‘systematically relied’ on the EU Pilot and channelled all potential infringements through the Pilot before launching infringement procedures.

Grounding the EU Pilot — Or Not?

In 2017, the Commission changed practice so that the EU Pilot no longer was the ‘default mechanism’ for engaging in dialogue with Member States on alleged breaches of EU law. As the EU Pilot was seen as adding ‘a lengthy step to the infringement process’, the Commission announced that it would only rely on the EU Pilot where recourse to it ‘is seen as useful in a given case’. This change of practice significantly affected the number of new EU Pilot cases opened: from more than 1,500 EU Pilot cases opened in 2013, only 179 were opened in 2017.

In a 2018 blog post, Melanie Smith – who has written widely on the EU Pilot – argued that it was ‘on its final descent’. Member States were not ready to mothball the EU Pilot, however. In a 2017 letter, 22 Member States part of the EU Law Network – an expert group under the Commission’s Secretariat-General comprised of Member State representatives – requested the Commission reconsider its new practice. They highlighted that the EU Pilot had been of ‘great utility’ and that it, through ‘improving the understanding on both sides’, had caused a significant decrease in the number of infringement procedures. This was highlighted again at a 2019 EU Law Network meeting.

And it seems that the Commission listened. Since its 2017 low, the number of new EU Pilot cases has taken off, although it is now cruising at a significantly lower altitude than before the shift in the Commission’s practice (Table 2). In its 2020 ‘Single Market Scoreboard’, the Commission noted that the year ‘confirmed the return to a more frequent use of the EU Pilot dialogue’. In the 2022 Scoreboard, the Commission highlighted the ‘trend of a more frequent use of the EU Pilot’.

Today, the EU Pilot is used in cases where the violation of EU law is not ‘well-evidenced, obvious or self-acknowledged’ or where ‘discussions at technical level are less likely to lead to a successful outcome’. Thus, the Commission relies on the EU Pilot only where it is uncertain if a Member State has breached EU law and where the use of the EU Pilot is likely to lead to faster compliance than launching an infringement procedure.

Despite the EU Pilot seeing more frequent use in recent years, the number of new environmental cases has crashed to almost zero, which stands in stark contrast to earlier years when such cases dominated the EU Pilot statistics. And it is certainly not because the Commission no longer receives complaints about Member States’ potential violations of EU environmental law – of the 2,351 complaints the Commission received in 2023, 357 concerned environmental matters. Thus, while the EU Pilot does see more use today than in the years following 2016, it is difficult to find evidence supporting the Commission’s claim that it has ‘prioritised’ the use of the EU Pilot to enforce EU environmental law.

Has the Infringement Procedure Swallowed the EU Pilot?

Although the drop in environmental cases as a percentage of total EU Pilot cases is notable – falling from 39 per cent in 2008 to around two per cent in 2023 – the overall downward trend has been gradual and consistent (Table 1). This reflects a shift in focus within the Commission’s use of the EU Pilot away from environmental issues over time, where environmental cases have decreased steadily as a proportion of total cases. Thus, in light of the Commission’s claim that it would rely more heavily on the infringement procedure, one might infer that the Commission has increasingly turned to the infringement procedure as its primary tool for enforcing EU environmental law.

Table 3: Trend – Environmental Cases as a Percentage of New Infringement Cases (formal notices)

This is, however, not so. For infringement procedures, where the proportion of environmental cases among total new cases has been more volatile than the EU Pilot, the overall long-term trend is more balanced and much less pronounced than for the EU Pilot (Table 3). There is no indication that the decline in environmental EU Pilot cases has led to an increase in new environmental infringement procedures over time; instead, the number of such procedures has remained relatively stable, both in relative and absolute terms (Table 4). 

Instead of launching additional infringement procedures in the wake of the decimation of the environmental EU Pilot, the Commission has highlighted that it now seeks to enforce Union law through a number of different avenues and that the infringement procedure is ‘now just one of several tools’. Most notable among these are the Environmental Implementation Review – a report which ‘presents a snapshot of implementation shortcomings’ in each Member State – and so-called ‘smart enforcement’ through which the Commission meets with, trains, and provides financial support to Member State authorities.

Table 4: Development – New EU Infringement Cases from 2008 to 2023 (new formal notices)

The Commission asserts that its emphasis on the Environmental Implementation Review and smart enforcement has enabled it to conserve its ‘legal firepower’ for addressing significant, systemic cases with broader environmental implications instead of isolated incidents. However, if one peruses the list of new infringement cases, there is scant evidence to substantiate that claim. Moreover, due to their largely discretionary and informal nature, these mechanisms are plagued by the same transparency and secrecy concerns as the EU Pilot.

The numbers speak for themselves. Although there has been no evident rise in new environmental infringement procedures following the decrease in environmental EU Pilot cases, evaluating the effectiveness of alternative enforcement mechanisms remains difficult. This may be on purpose. In a World Politics article published in 2023, Dan Kelemen and Tommaso Pavone argued that the Commission has partly sacrificed its role as the ‘Guardian of the Treaties’ to ensure its political role as ‘the engine of integration’. Following the populist backlash against the Commission’s green agenda, the political price of enforcing the environmental acquis has risen, making – at least from a political point of view – the Commission’s more lenient approach to enforcement understandable.

Environmental EU Pilots – Off Course or in a Tailspin?

The enforcement of EU environmental law has often been criticised for being political, inefficient, opaque, and slow. The EU Pilot can indeed be criticised for this. At the same time, however, the EU Pilot is not all bad. It provides a more flexible approach to resolving potential violations of EU environmental law than the infringement procedure by allowing for early intervention and dialogue between the Commission and Member States. Unfortunately, the Commission’s decision to mothball the EU Pilot removes a valuable, albeit troubled, tool for informal enforcement of EU environmental law.

Instead, as a procedure considered efficient by both the Commission and the Member States, the Commission should seek to make the EU Pilot more transparent by including stakeholders more closely in the procedure and publishing the reasoning behind the closing of an EU Pilot procedure. Not only has the Parliament called on this a number of times, but it has also called on adopting a legally binding act to govern the EU Pilot – compared to the current basis in a Commission Communication for the EU Pilot – which could enhance the EU Pilot’s legitimacy by increasing the legal certainty of how the procedure is used, its transparency, and its underlying procedure.

Looking forward, however, the new Commission has promised to focus on the ‘implementation’ of Union law. In her political manifesto, released as part of her bid for a second term as Commission President, Ursula von der Leyen promised that there would be a ‘Vice-President for Implementation, Simplification and Interinstitutional Relations’ who would be tasked with improving enforcement and stress-testing the entire acquis. And, despite not being a vice president, the new Commission does indeed feature a Commissioner for Implementation and Simplification.

The new political reality is, however, much like the old. During von der Leyen’s first term, the number of environmental EU Pilots plummeted despite her Commission’s preference for informal and secretive mechanisms like the EU Pilot, which it touts as ‘more efficient’ than the infringement procedure. With no signs of a policy shift, it remains likely that the environmental EU Pilot will remain grounded for the foreseeable future.

Replication data for the graphs in this blog post are available here and here.

Johan P. Stagstrup is an MJur candidate at the University of Oxford. He previously trained at the European Court of Justice and the European Court of Human Rights.