The Untapped Potential of Horizontal Private Enforcement within EC Environmental Law

Abstract

The premise of the article is that horizontal private enforcement could improve the deterrent effect of public enforcement in cases where there is a low likelihood of public enforcement due to information dissymmetry or funding problems on the side of the public enforcer. In order to illustrate these problems, the first part of the article analyses three common modes of public regulation and enforcement within EC environmental policy. After discussion of the possibilities for horizontal private enforcement of EC environmental law by means of direct effect and consistent interpretation, the Aarhus Convention and the Environmental Liability Directive, it becomes clear that the theoretical potential of horizontal private enforcement has not yet translated into practical application. In the final part of the paper, the author proposes several changes in policy, which would allow the complementary strong points of private and public enforcement to be better used. These policy recommendations include: further research into the complementarities of public and private enforcement; differentiation based on the scale of the environmental problem and the adoption of environmental laws by means of regulations instead of directives.

Keywords: Public regulation, Private (horizontal) enforcement, European Environmental Law, Aarhus Convention, Environmental Liability Directive

JEL Classification: K32, K33