W5 - Infringement Procedure | Quizlet

infringement procedure relevant articles

1. art. 258 TFEU --> commission initiates (discretion)

2. art. 259 TFEU --> MS initiates (rare)

3. art. 260 TFEU --> financial sanctions

4. art. 279 TFEU --> interim measures

art. 258 TFEU

If the Commission considers that a Member State has failed to fulfil an obligation (= infringement) under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may (= commission has discretion to decide whether or not to initiate infringement procedure) bring the matter before the Court of Justice (procedure: pre-litigation and litigation phase)of the European Union

= commission as principal enforcer of EU law

infringement procedure rationale

 Idea is not to ‘shame’ defaulting Member State, but:

- Purpose is that of ’obtaining a declaration that the conduct of a Member State infringes [EU] law and of terminating that conduct’ (Cases 15-16/76, France v Com, §27).

- Leads to a declaratory statement that clearly identifies a lack of compliance and to terminate the lack of compliance

- To establish without a doubt violation of EU law

infringement procedure is objective

- Procedure is “objective in nature”, not personal against the MS but to ensure EU law is complied with

‘ultima ratio enabling the [EU] interests enshrined in the Treaty to prevail over the inertia and resistance of Member States’ (C-196/07, Com v. Spain, para. 28

- Intent of MS is irrelevant for considering whether a MS infringes EU law - a good excuse does not matter for infringement procedure

what does the infringement procedure cover

Failure to fulfil an obligation which includes:

1. Any infringements/violations of EU law

- Incl. very minor, trivial violations, no de minimis rule

- principles, e.g. Breach of duty of sincere cooperation (Art 4 (3) TEU

-  Inadequate implementation

- Systemic and persistent breaches of general practice

2. Violation by any branch of public power in the Member States

- Legislative, administrative (+ principles), judicial (decisions)

- procedure can be used against any authority of a MS

no de minimis rule

infringement procedure does not cover

ECJ’s jurisdiction is excluded for some areas of EU law, including CFSP (Art 275 TFEU) and proportionality  of police actions and enforcement in the Area of Freedom, Security and Justice (art. 276 TFEU)

commission as guardian of the treaties

- Article 258 TFEU is not intended to protect the Commission’s own rights but instead…

- Commission acts in ‘the general interest of the [EU]’ (C-431/92, Com v. Germany, para. 21)

- Commission by definition ‘concerned’ by violations (vs annulment procedure where concern to be established)

No need to show some specific form of concern

commission has wide discretion

decides whether to initiate an infringement procedure (cannot be forced to initiate)

› It ‘may’ bring the matter before the Court of Justice

› ’it is not for the Court to consider what objectives are pursued in an action brought under Article [258] TFEU’, C-472/98, Commission v. Luxemburg [Zero Ratings] Initiation

› Commission may act ex officio (on its own initiative), following press reports, EP questions, etc.

› or after being called to act by individuals - Via a compliant form, draw commission’s attention to a problem

infringement procedure phases

[Pilot system]

1. pre-litigation phase

2. litigation phase

Pilot system

informal exchange of views between MS and commission before the pre-litigation phase, MS can more openly explain what the situation is

1. pre-litigation phase

1. Commission sends a letter of formal notice, formally drawing Member State authorities’ attention to alleged infringement of EU law and asking for further information

2. MS must answer within a reasonable time limit (usually 2 months)

3. If no or dissatisfactory Member State reply: Commission sends a “reasoned opinion”, presenting a coherent and detailed statement of the reasons motivating

the initiation of the infringement procedure (C-279/94, Commission v Italy)

--> Corresponds with duty to provide reasons (Art 41 (2) (c) Charter of FR)

--> Reasoned opinion equally indicates a ‘reasonable period’ for the MS to responds

pre-litigation phase is an indispensable procedural guarantee

Pre-litigation phase is an indispensable procedural guarantee (C-150/11, Commission v Belgium, para. 25) = If the commission would forget to do so, the infringement is right away inadmissible (essential procedural requirement)

2. litigation phase

if a MS does not respond/provides insufficient response to commission reasoned opinion ( after expiry of period in the reasoned opinion)

- discontinuation possible

- burden of proof on the commission

forbearance argument

(Kelemen/Pavone)

key argument is that the Commission has become less active in enforcing EU law through the infringement procedure

art. 279 TFEU

interim measures (can be ordered in infringement cases)

Purpose is to avoid the occurrence of irreparable harm pending judicial review (prevent the MS from aggravating the situation where the harm is irreparable) 

CJEU statute, Article 39: ordered by the President (or Vice-President) of the Court of Justice

e.g.  C-121/21 R, case brought against Poland on the operation of the Turów lignite mine (case withdrawn)

- irreparable harm in the context of environmental law

art. 259 TFEU

A Member State which considers that another Member (= inter-state dispute) State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the

European Union.

Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission.

= procedural specificity, MS must first approach the commission to attempt to convince it to initiate infringement procedure. Only if commission refuses, can MS have recourse to art. 259. 

The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party's case both orally and in writing.

If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court.

art. 259 TFEU significance

Could be an effective workaround to the Commission’s ‘forbearance’

› ‘biting intergovernmentalism’ (Kochenov 2015)

Has been discussed as a promising avenue, bc the powerful MS govs take an active role in bringing other MS govs before EU law

But: procedure used very rarely - MS do not like to drag each other before the court

best next thing? - intervening MS under art. 258 TFEU procedures (e.g. Commission v Hungary, 15-16 interveners (MS) in support of commission,)

art. 260 TFEU

Enforcement of EU law through financial sanctions (Consequences from a finding of EU violation)

art. 260 TFEU structure

para 1: MS need to terminate their conduct that violates EU law, ideal situation that they stop (comply with judgement)

para 2: EU can sanction disregard for infringement procedure outcome through financial sanctions (lump sum = one off payment or; periodic penalty payment)

para 3: failure to fulfil obligation to notify measures transposing a directive under a legislative procedure

art. 260(2) TFEU

› Fine for non-compliance with previous infringement decision

› Amounts determined on a discretionary basis

e.g. § C-123/22, Com v. Hungary, over non-compliance with EU asylum law:

Lump sump 200 million euros

Periodically 1 million euros a day 

For failure to comply with judgement

criteria for setting penalties (art. 260(2))

COM has communicated the (vague) criteria for setting amounts of penalties: seriousness of infringement, duration, ability of MS to pay, mitigating circumstances

Financial penalties can also be ordered to comply with interim measures:

C-204/21 R and C-204/21 R-RAP: case brought against Poland in the context of rule of law crisis (daily payment of 1 million Euro, later reduced to 500 k per day).

- Commission applied for interim measures

- Won to the effect that Poland was order to pay 1 million euros a day (but NB - Poland is a large and wealthy MS)

But ultimately gov did not change

situation in which MS does not pay

Last resort option: EU can deduct the fines not paid from the money due to Member States under EU budgetary rules (a practice sometimes called “offsetting“),

- take money out of the MS cohesion funds to pay the penalty (EU keeps the money that was allocated to the MS)

art. 260(3) TFEU

“When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.

 If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.”

art. 260(3) TFEU significance

Novelty introduced by the Treaty of Lisbon

- Accelerated imposition of financial penalties in the case of non-notification of transposing measures of a Directive

failure to notify transposition meaning

a procedural obligation of MS

Commission v Belgium:  paras. 50-59: MS‘ notification must be sufficiently clear and precise for each providsion of a Directive (in practice, usually through a “correlation table“ - article 1 of directive has been transposed as X…)

a situation of erroneous transposition is excluded from Art 260 (3) and must be dealt under the normal proceedings under Art 258 TFEU (see also AG Medina iin C-879/24, para. 90.)

art. 259 TFEU cases (3)

1. C-591/17, Austria v. Germany (over financing of motorways)

2. C-457/18, Slovenia v. Croatia (over a border dispute)

3. C-524/24, Italy v. Austria (prohibition of heavy good vehicles across the Brennero during night time) (currently pending)

art. 260 cases (3)

1. Commission v France (Fisheries Control) --> recourse to both types of penalties, commission discretion

2. Commission v Belgium --> failure to notify (art. 260(3)) procedural obligation of MS

3. Commission v Romania --> commission discretion, commission requirement to state reasons

Commission v France (Fisheries control)

--> apply to: art. 260 TFEU

Rules:

rationale and application of financial penalties art. 260 TFEU §80-81 / Application of penalty payment vs lump sum (rationale) §81

recourse to both forms of penalties is NOT precluded §82-86

the appropriateness of imposing a financial penalty and the choice of the penalty falls outside the political sphere and therefore, the court has discretion to impose a financial penalty not suggested by the Commission §90

Departing or going beyond the Commission’s suggestions does not infringe the general principle of procedural law which prohibits courts from going beyond beyond parties’ claims because the procedure under art. 260 is a special judicial procedure, peculiar to Community law, which cannot be equated with a civil procedure. §91

Commission v Belgium

--> apply to: art. 260 TFEU

rules:

failure to notify as a procedural obligation of MS §51, §59

Member States to provide sufficiently clear and precise information on the measures transposing a directive. In order to satisfy the obligation of legal certainty and to ensure the transposition of the provisions of that directive in full throughout its territory, the Member States are required to state, for each provision of the directive, the national provision or provisions ensuring its transposition.

interpretation of art. 260(3) TFEU §52-§58 / meaning of obligation to notify measures transposing a directive

Commission v Romania

--> apply to: art. 260 TFEU

as guardian of the Treaties pursuant to the second sentence of Article 17(1) TEU, the Commission enjoys a discretion to take such a decision §48

fact that the Commission is not required to state reasons on a case-by-case basis for its decision to seek the imposition of a financial penalty under Article 260(3) TFEU does not relieve it of the obligation to state reasons for the nature and the amount of the financial penalty §51