The European Union is faced with member states that openly defy EU legislation and, where Poland is concerned, recently even an order of the EU court.

While the various hurdles associated with the 'nuclear option' of the rule of law procedure are broadly discussed, a far more down to earth instrument merits attention.

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Could the EU court impose periodic penalty payments as interim measures against states suspected of violating EU law?

Although the applicable EU Treaty provision on interim measures has existed since 1957, the question has remained unanswered to date.

But that situation is about to change thanks to the Polish forest case.

Poland was ordered by the EU court on 27 July to stop logging in the protected Natura 2000 area of the Bialowieza Forest, except in cases where public safety is at stake.

Not out of the woods

However, the logging continued in spite of the interim order.

From a legal point of view it seems that the activities in the forest do not qualify as public safety measures, but rather as demonstrations of the reluctance of the current Polish government to observe the rule of law.

The European Commission requested on 11 September for the EU court to impose a periodic penalty payment until the logging stops.

While several applicants have made requests for the imposition of penalty payments as interim measures in the past, it was the first time the commission had done it.

The EU court never granted those requests for a variety of reasons, but lack of jurisdiction was not among them. At the same time, it never confirmed that it could impose this kind of interim measures.

The relevant provision of the Treaty on the Functioning of the EU (TFEU) allows the court to prescribe "any necessary interim measures". This wording indicates that the commission's request could be granted.

The EU court itself has stressed that the provision's "broad wording is obviously intended to grant sufficient powers to the judge hearing an application for interim measures" so that the judge can "prescribe any measure he deems necessary to guarantee the full effectiveness of the definitive future decision".

It goes on to say that this is done "to ensure that there is no lacuna [gaps] in the legal protection".

Protecting nature

Furthermore, it has underlined that interim relief is aimed at "avoiding serious and irreparable harm to the applicant's interests", such as the protection of nature - for instance, the common heritage of the EU.

In the situation at hand, imposing a periodic penalty payment as an interim measure seems a viable option to ensure that the Polish primeval forest is protected from further harm, and to preserve the full effectiveness of the judgment.

After all, what good would a final judgment be that finds Poland in violation of the Union's nature protection law when, by that time, large parts of the primeval forest have already been destroyed?

Hopefully, the EU court will agree to the introduction of periodic penalty payments in interim procedures. This option could form a practical and valuable instrument to ensure that member states abide by European law.

Dr Wybe Douma is senior researcher European Law and International Trade Law at the T.M.C. Asser Instituut, The Hague, and lecturer International Environmental Law at the Hague University.