Alicja Slowik , 4 octobre 2021

By its order of 20 September 2021 in case Czech Republic v Republic of Poland (C-121/21) the Vice-President of the Court of Justice of the EU imposed a daily penalty payment of 500 000 € on Poland following the Member State’s non-compliance with the interim measures ordering it to stop lignite extraction activities at Turów mine.

Since several years the operation of the Turów mine, located on the Polish territory in the close proximity of Czech and German borders, has been the object of heated discussions between Polish and Czech authorities. The Czech Republic claims that lignite extraction activities in the Turów mine run by PGE (Polish State energy company) have a detrimental impact on the environment and have caused significant water shortages in the Czech cross-border territories. Poland argues that it is not able to close the mine as the shutdown would present a risk to its energy security and provoke a huge loss of jobs (the mine generates electricity that represents around 7 % of national energy production). In October 2019, the operator of the mine applied for the extension of lignite mining concession for a further period of six years. In March 2021, the Polish Minister for Climate granted permission for lignite mining until 2026.The Czech Republic considered that, by grating the permission, Poland has infringed EU environmental legislation, in particular Environmental Impact Assessment Directive (2011/92/EU).

After having referred the matter before the European Commission (which adopted a reasoned opinion stating that Poland has infringed  several provisions of EU law but not all the ones raised by Czechia in its complaint), Czechia decided to bring an action for failure on the basis of Article 259 TFEU before the Court of Justice. It then lodged an application for interim measures asking the Court to order Poland to cease lignite mining activities immediately at Turów mine pending delivery of the final judgement. In May 2021 the Vice-President of the Court, Ms Rosario Silva de Lapuerta, issued the requested order. As the Polish authorities did not undertake any action to comply with the measures, the Czech Republic reached the Court again with the request to order Poland to pay a daily penalty payment of 5 000 000 € to the EU budget. In response, Poland brought an application seeking cancellation of the interim order.

The Vice-President dismissed Poland’s application and recalled that Article 279 TFEU “confers on the Court the power to prescribe any interim measure that it deems necessary in order to ensure that the final decision is fully effective” (pt 35). Such a measure may imply also provision for a periodic penalty payment. The Vice-President stated that it was “unequivocally clear” that Poland did not comply with the decided interim measures in May 2021. Underlining that in the present case compliance with these measures is necessary in order to avoid serious and irreparable harm to the environment and human health, the judge ordered Poland to pay the Commission a penalty payment of 500 000 € per day from the date of notification of the 20 September 2021’s order until that Member State complies with the interim order.

Shortly after the publication of the Order, the Polish Government clearly stated that it would not cease the extraction activities in the mine, nor does it intend to pay the penalty which it considers as "disproportionate". During the press conference in Brussels, the spokesperson of the European Commission underlined that Polish authorities must pay the daily penalties since it is their legal duty. It seems thus that alongside the whole set of proceedings relating to the independence of the Polish judiciary (see for ex. recent order in case C‑204/21 R and the related news note published on the CEJE website), the “Turów question” risks to become another source of political tensions between the Polish Government and the EU Institutions.

As several commentators pointed out, Czech Republic v Republic of Poland is the first case brought before the CJEU under Article 259 TFEU which aims at enforcing the correct application of environmental obligations[1]. Moreover, it is the first inter-state action in which the Court decided to grant interim measures. The present order confirms that, notwithstanding the subject matter of the dispute and its political dimension, the Court will not hesitate to resort to severe measures to guarantee the effective application of European law and to maintain the authority of its previous findings. This precedent might be an incentive for a more frequent use of Article 259 by the Member States seeking for alternative methods for the solution of political disagreements in situations where diplomatic channels turn out to be fruitless or insufficient.

Alicja Słowik, Daily penalty payment imposed on Poland for non-compliance with the interim measures on the activities at Turów coal mine, actualité du CEJE n° 33/2021, disponible sur www.ceje.ch