Environmental Impact Assessment: Commission adopts reasoned opinion in case brought by Czechia against Poland

The Commission today adopted a reasoned opinion in a procedure brought by Czechia against Poland under Article 259 of the Treaty on the Functioning of the European Union. Czechia has claimed that Poland infringed European Union law by certain actions undertaken as part of the procedure for prolonging the mining concession of the Turów lignite coal mine until 2026.

In the event of a dispute between two Member States, Article 259 provides that the matter must first be brought to the attention of the Commission, which has three months to issue a reasoned opinion, after giving both sides an opportunity to submit their observations. If the Commission has not delivered an opinion within those three months, the absence of such an opinion shall not prevent the matter from being brought before the court.

Czechia submitted a complaint to the Commission on 30 September 2020, and after that the Commission heard Czechia and Poland. In its reasoned opinion, the Commission considers that Poland has committed some of the infringements of EU law that Czechia had raised in their complaint but not all.

First, the Commission considers that Polish law incorrectly transposes the access to justice provisions of the Environmental Impact Assessment Directive (2011/92/EU). The lack of compatibility of the relevant Polish law with Directive 2011/92 is also subject to a pending infringement procedure pursuant to Article 258 TFEU.

Second, in the context of the procedure prolonging the mining concession for the Turów lignite coal mine, the Commission considers that the Polish authorities have incorrectly applied the provisions of the Environmental Impact Assessment Directive (2011/92/EU) and access to information Directive (2003/4/EC), as regards information to the public and Member States involved in transboundary consultations, access to justice, as well as the principle of loyal cooperation enshrined in Article 4(3) of the Treaty on the European Union (TEU).

Other infringements alleged by Czechia, in particular in relation to the Strategic Environmental Assessment Directive (2001/42/EC) and the Water Framework Directive (2000/60/EC), were considered as unfounded by the Commission, based on the evidence and arguments put forward by the two Member States.

Background

The Turów lignite coal mine is located in southwest Poland, close to the border with Czechia and Germany.

In order to prolong the mining concession for the Turów mine, Poland amended the land use plan in May 2019, issued an environmental permit including an environmental impact assessment for the prolongation in January 2020 and made it immediately enforceable. In March 2020, Poland prolonged the mining concession until 2026. While there were transboundary inter-state consultations and consultations of the public concerning the environmental permit and the change of the land-use plan, they were not with regard to the prolongation of the mining concession.

In September 2020, the Czech authorities lodged a formal interstate complaint before the Commission under Article 259 TFEU, which requires a matter to be referred to the Commission as a prior step before a Member State brings an action against another one before the Court of Justice of the EU.

Czechia claimed that Poland infringed: Directive 2011/92/EU, Directive 2001/42/EC, Directive 2000/60/EC, Directive 2003/4/EC on public access to environmental information, and the principle of loyal cooperation under Article 4(3) TEU.

Next steps

Following the adoption of the reasoned opinion by the Commission, Czechia may decide to refer the case to the Court of Justice of the EU. This does not preclude the parties from finding an amicable settlement to the dispute.