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How do The Netherlands comply with EU law?

The rights and obligations arising from the EU Treaties and the laws based on them apply to all EU member states and their subjects. EU law often has direct application and is superior to member state law. As a signatory to the EU Treaties, the Netherlands is committed to implementing and complying with EU law. It must put into practice: (a) all treaties relating to the establishment and functioning of the EU, and (b) all binding legal acts of the EU, such as regulations, directives and decisions. As a member state, moreover, the Netherlands may not take any measures that fail to fulfil obligations arising from the EU Treaties.

European Commission investigates possible infringements of EU Law

As the executive arm of the EU, the European Commission has many responsibilities, including overseeing compliance with EU law. Under article 258 of the Treaty on the Functioning of the European Union (TFEU), the Commission can investigate the member states’ possible infringement of EU law. The Commission does so via various formal and informal instruments, including:

  • Infringement procedure: a formal procedure that commences with the Commission delivering a reasoned opinion explaining why a member state has failed to fulfil an obligation. There then follows a written dialogue with fixed response times. An infringement procedure is closed when the Commission considers the possible infringement has been resolved.
  • Court of Justice of the EU: as the final step in an infringement procedure, the Commission can refer a case to the Court of Justice of the EU. The member state must comply with the Court’s judgment and take measures to end any infringement of EU law. In the final instance, the Court can impose a daily penalty payment and/or a lump sum fine on the member state.
  • EU Pilot: an informal procedure comprising a structured written dialogue between the Commission and a member state, initiated if the Commission suspects a possible infringement of EU law. Depending on the outcome, the Commission decides whether a formal procedure is necessary.
  • SOLVIT: an informal mediation mechanism the Commission introduced in 2002 to resolve problems citizens or businesses in one member state experience in another member state. 

In addition, a national court can seek clarification about the correct application or interpretation of a particular aspect of EU law by putting a prejudicial question to the Court of Justice.

There is an actual infringement of EU law if the Court of Justice or another court rules that there has been. 

Outcomes of formal and informal procedures against the Netherlands in 2010-2020

  • The audit report we published on 15 June 2023 provides an overview of the formal and informal procedures initiated between 2010 and 2020 to address possible infringements of EU law. We found that:
  • The European Commission received 1,025 complaints against the Netherlands, most concerned employment, the environment and the single market. The Commission concluded that 164 complaints were warranted. Of these cases, 92 were subject to an EU Pilot and 18 prompted the Commission to launch an immediate formal infringement procedure.
  • Other member states initiated 443 SOLVIT cases against the Netherlands. 363 of them have been resolved, giving a resolution rate of 84.2%. Most of the complaints related to social security and the free movement of persons. Most of the complaints were made from the United Kingdom, Poland and Germany.
  • 264 EU Pilot procedures covering nearly all policy fields were launched against the Netherlands. 177 (67%) were closed with the Commission accepting the Netherlands’ response and refraining from taking further steps. EU Pilots therefore have a preventive effect. 54 procedures, however, led to further treatment by the Commission, including 39 infringement procedures. 
  • Where the Commission considered the Netherlands’ implementation and/or application of EU law to be incorrect or incomplete, it initiated 67 infringement procedures against it on substantive grounds. At the end of 2020, 49 of the procedures had been closed. The outcome could be reconstructed in 38 cases. In most of them, the Netherlands complied with the Commission’s requirements.
  • The Commission referred 13 cases to the Court of Justice during the period audited. The Court has ruled on 10 of them. It found against the Netherlands in 6 of them and the Netherlands accordingly had to amend national law in order to comply with EU law.
  • The Netherlands was involved in 605 prejudicial cases: 260 were brought before the Court of Justice by a Dutch court and in the remainder the Netherlands decided to take part in a case referred by a court in another member state. In a clear majority of the cases, the Court of Justice’s ruling agreed with the Netherlands’ stance.

National comparisons

The Commission compares the member states’ performance in infringement and SOLVIT procedures on its Single Market Scoreboard. The Commission provides only a general impression of performance in EU Pilots. The country page on the Netherlands summarises the country’s performance in broad lines. Based on the Commission’s information, the Netherlands’ implementation of EU law and its performance in infringement procedures is more or less average in comparison with the other member states.

Current status of active infringement procedures against the Netherlands

Public information provided by the Commission gives a continuous insight into active formal legal proceedings brought against the Netherlands. Infringement procedures that are currently active are listed here. Cases currently before the Court of Justice are shown here. 

The Ministry of Foreign Affairs sends a summary of the status of active infringement procedures (broken down by ministry) to the House of Representatives every quarter. It publishes an overview of the Netherlands’ legal representation at the Court of Justice every year. The most recent overview relates to 2021 and can be seen here.

Neither the Commission nor the Netherlands provides public information on closed or active informal EU Pilots or SOLVIT procedures or on other informal processes.

Three active disputes between the Netherlands and the Commission concerning the implementation of EU law

The following 3 examples show how far-reaching some disputes can be and why it is important to keep a close eye on the social cost of long-running questions and to be open to critical opinions from the civil service.

Water Framework Directive
The Water Framework Directive (WFD) came into force in 2000 to protect the quality of groundwater and surface water in the EU. It includes agreements to ensure that the waters in all member states are clean and healthy, in the first instance by 2015 but no later than 2027.

Our audit found that the Commission considered the Netherlands’ implementation of the WFD had possibly infringed EU law in several respects since 2000. In consequence, it initiated 5 informal EU Pilots and 3 formal infringement procedures against the Netherlands. The cases often concerned a difference of opinion about the WFD’s definitions and obligations.

The Netherlands wishes to seek as much freedom as possible for a pragmatic implementation based on minimum requirements. One difference of opinion between it and the Commission relates to achievement of the WFD’s objective. The Commission looks upon the WFD as a result obligation but the Netherlands recently took the stance that the WFD contains an obligation of best efforts and the measures taken can achieve the objective later than the target date. It is still uncertain whether the Commission will accept this interpretation when it makes its final assessment in 2027.

This case also revealed a connection with the farming sector via the Nitrate Directive. The Netherlands only recently considered the policy of the Nitrate Directive in conjunction with the WFD, for instance in the National Programme for Rural Areas.

Renewable energy
The 2009 Renewable Energy Directive requires all member states together to generate at least 20% of their total energy consumption from renewable sources. The binding target for the Netherlands is 14%. Our audit found that the Netherlands was making slow progress towards this target and the EU had initiated an EU Pilot procedure against it in 2016. The Netherlands then concluded an agreement with Denmark under which it purchased surplus Danish renewable energy to make up for its own shortfall. The agreement did not increase the proportion of renewable energy generated in the Netherlands.

When the agreement was concluded, the Commission closed the EU Pilot and did not initiate an infringement procedure. However, an infringement procedure (INFR(2021)0310) concerning renewable energy was brought against the Netherlands in 2021. The Commission thinks the Netherlands has not implemented the 2018 Renewable Energy Directive on time. This infringement procedure has not yet been closed.

An amendment of the Renewable Energy Directive is part of the Commission’s Fit for 55 package. Its goal is to lower net greenhouse gas emission by 55% by 2030 relative to 1990. The target for the share of renewable energy in the EU has been raised to 38-40% by 2030.

European arrest warrant
The Court of Justice has handed down many preliminary rulings regarding the European Arrest Warrant Framework Decision (EAW) since its introduction in 2002. Between 2007 and 2022, it delivered more than 60 such rulings. The most recent summary of prejudicial cases and preliminary rulings concerning the EAW is available here.

The Netherlands has twice amended the Surrender of Persons Act, chiefly in response to the Court’s rulings, the first time by means of emergency legislation in 2019 and the second time by means of a more sweeping amendment (re-implementation) in 2021. Our audit found that the European Commission considered the amendments inadequate and that the framework decision had been implemented in the Surrender of Persons Act incorrectly. It therefore initiated an infringement procedure  (INFR(2021)2004) in 2021. This procedure, too, is still active.

Investigations by other supreme audit institutions and academic studies

At the request of the European Parliament, the European Court of Auditors published an overview of the processes the Commission can use to prevent, detect and if necessary resolve possible infringements of EU law. Its report consists mainly of a list of what the Commission can do. It does not contain an empirical assessment of how often such situations have arisen in practice. 

As far as we are aware, other EU supreme audit institutions have not audited EU law in practice.

There are few academic studies on the Netherlands’ implementation of EU law and problems that arise from incorrect or incomplete implementation. The studies of national implementation of EU law that have been carried out in recent years have concentrated on transposition – the translation of EU Law into national law – and whether EU law was transposed on a timely basis.