How does the Netherlands comply with EU law?

The Treaty on the Functioning of the European Union (TFEU) lays down the powers of the European Union and how it can exercise these powers. Together, this treaty and the 1992 Maastricht Treaty represent the EU’s most important legislative foundations. The rights and obligations arising from the EU treaties and European legislation based on these treaties (i.e. EU directives, regulations and decisions) apply to all EU member states and their citizens. EU law often has direct effect and takes precedence over member states’ national law.

By signing these EU treaties, the Netherlands has committed itself to implementing and complying with all EU legislation and rules. As a member state it is also not allowed to introduce any measures conflicting with obligations arising from the EU treaties.

Some European legislation has to be adopted and implemented by EU member states in its entirety. This applies to European regulations, possibly subject to a transitional period.

European directives require a certain result to be achieved, but leave member states free to choose how they do this. Member states have to adopt measures to transpose directives into national law so as to achieve the set objectives. Directives have to be incorporated into national law by a specific date.

The way EU rules are applied in practice can obviously give rise to discussions between citizens or businesses and governments. These discussions sometimes result in legal proceedings. Possible infringements of EU law may also be investigated by the European Commission through the various formal and informal instruments available to it. Over 1,000 complaints about the Netherlands were submitted to the European Commission between 2010 and 2020, many of which proved to be unfounded. Many of the complaints submitted to the Commission were able to be resolved though informal procedures. Where, however, resolution was sought through formal procedures, the Netherlands was usually found to be fault. It then had to reverse the measures found not to comply with EU law and amend any relevant provisions in national law. The figures for the Netherlands in this respect are around the mid-range for possible infringements in member states’ implementing of EU legislation.

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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 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 and 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 asking for a preliminary ruling from the Court of Justice.

An actual infringement of EU law occurs only if the Court of Justice or another court definitively rules this to be the case.

More information

Infringement procedure, European Commission
EU PILOT, European Commission
SOLVIT, European Commission
De prejudiciële procedure - Explanation on preliminary rulings by Expertisecentrum Europees Recht (Dutch only)

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. This was the first time that these procedures had been examined together in an audit.

We found that:

The European Commission received 1,025 complaints against the Netherlands. Most of these 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. Of these, 363 have been resolved, giving a resolution rate of 84.2%. Most of the complaints related to social security and the free movement of persons, and came from the United Kingdom, Poland and Germany.
A total of 264 EU Pilot procedures, covering nearly all policy areas, were launched against the Netherlands. Of these, 177 (67%) were closed with the Commission accepting the Netherlands’ response and refraining from taking further steps. EU Pilots therefore have a preventive effect. A total of 54 procedures, however, led to further action 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 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 these cases, 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 cases involving preliminary rulings: 260 of these were brought before the Court of Justice by a Dutch court, while 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.

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EU law in practice

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 are more or less average in comparison with the other member states.

More information

Single Market Scoreboard: Infringements, European Commission
Single Market Scoreboard: EU PILOT, European Commission
Single Market Scoreboard: SOLVIT, European Commission
Single Market Scoreboard: the Netherlands, European Commission

Current status of active infringement procedures against the Netherlands

Public information provided by the Commission provides ongoing insight into active formal legal proceedings brought against the Netherlands. Infringement procedures that are currently active and cases currently before the Court of Justice are shown.

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.

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

More information:

Infringement procedure, European Commission
Overzicht ingebrekestellingen (per departement) - Information by the Dutch Minister of Foreign Affairs regarding current infringement procedures (31-03-2024) (Dutch only)
Jaarbericht 2022 Procesvertegenwoordiging Hof van Justitie van de EU - Overview by Dutch minister of Foreign Affairs concerning cases for the Court of Justice of the EU current (01-05-2023) (Dutch only)

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.

The Netherlands has to comply with EU law. We therefore expect the Dutch authorities to be aware of and have insight into and an overview of all relevant informal and formal procedures relating to compliance with EU law. This is important both for the government and for the House of Representatives. Not only so that they know the current status of compliance with EU law, but also and primarily so that they can properly assess the short- and long-term legal and administrative risks and the possible financial and social consequences. Having this information means ministers are better able to make long-term assessments and the House of Representatives is better able to perform its scrutinising role. Providing ministries with information on opposing views can help to prevent new formal procedures against the Netherlands being submitted to the European Commission, as well as helping to prevent disputes continuing for longer than necessary. Lastly, it is a way of avoiding unnecessary delays in dealing with urgent problems and so prevents further increases in the costs to society.

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 water in all member states is clean and healthy, in the first instance by 2015 but no later than 2027.

Our audit of EU law in practice includes a case study involving the WFD.

Our audit found that the Commission considered the Netherlands’ implementation of the WFD had possibly infringed EU law in several respects since 2000. It consequently 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 have as much freedom as possible in seeking a pragmatic implementation, based on minimum requirements. One difference of opinion with the Commission relates to achieving the WFD’s objective. Whereas the Commission views the WFD as a result obligation, the Netherlands recently concluded that it represented a best efforts obligation and that measures taken can achieve the objective later than the target date. Whether the Commission will accept this interpretation when it makes its final assessment in 2027 is still uncertain.

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 in, for instance, the National Programme for Rural Areas.

More information:

Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources - Water Framework Directive
Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources - Nitrate Directive
Bijlage casusonderzoeken bij het rapport EU-recht in de praktijk - Audit Netherlands Court of Audit regarding the Water Framework Directive (15-06-2023) (Dutch only)

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 by 2020. The Directive sets a separate binding target for each country. The binding target for the Netherlands is 14%.

Our audit of EU law in practice includes a case study in which we describe the Netherlands’ performance in renewable energy.

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 has not increased 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 emissions 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.

More information:

Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (Text with EEA relevance) - Renewable Energy Directive 2009
Renewable Energy Directive 2018
European Green Deal: Commission proposes transformation of EU economy and society to meet climate ambitions - Press release European Commission regarding ‘Fit for 55’-pakket (14-07-2021)
Bijlage casusonderzoeken bij het rapport EU-recht in de praktijk - Audit Netherlands Court of Audit regarding Renewabe Energy Directive (15-06-2023) (Dutch only)

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.

Our audit of EU law in practice includes a case study in which we examine the Netherlands’ implementation of the European arrest warrant. The Netherlands transposed the European arrest warrant into its national legislation in 2003. This legislation, the Surrender of Persons Act, came into force on 1 January 2004.

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 incorrectly implemented in the Surrender of Persons Act. It therefore initiated an infringement procedure (INFR(2021)2004) in 2021. This procedure, too, is still active.

For further information see:

2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - European Arrest Warrant Framework Decision 2002
Overview preliminary rulings on European Arrest Warrant
Bijlage casusonderzoeken bij het rapport EU-recht in de praktijk - Audit Netherlands Court of Audit regarding European Arrest Warrent (15-06-2023) (Dutch only)

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 (2018). 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. The European Court of Auditors is planning to publish a new audit report on the Commission’s use of infringement procedures in early 2025.

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.

More information:

Review No 07/2018: Putting EU law into practice: The European Commission’s oversight responsibilities under Article 17(1) of the Treaty on European Union (Landscape Review) - Report European Court of Auditors

How does the Netherlands comply with EU law?

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European Commission investigations of possible infringements of EU law

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

Current issues in the Netherlands

Other investigations of compliance with European legislation

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