W5 - Infringement Procedure + Sanctions | Quizlet

Relevant articles for infringement procedure

1. Art. 258 TFEU (Commission initiates, discretionary);

2. Art. 259 TFEU (MS initiates, rare);

3. Art. 260 TFEU (financial sanctions);

4. Art. 279 TFEU (interim measures).

infringement procedure rationale

Not to "shame" the Member State, but to obtain a declaration that its conduct infringes EU law and to terminate that conduct (France v Commission §27)

infringement procedure is objective in nature

The procedure is not aimed at establishing fault, guilt, or liability of MS authorities; it is an objective assessment of consistency with EU law, regardless of the reasons or good faith behind the conduct.

no de minimis rule

Mere failure to comply with an EU obligation is sufficient to constitute a breach, regardless of frequency, scale, or adverse effects (Commission v France §51).

Commission as guardian of the Treaties

Article 258 TFEU is not intended to protect the Commission's own rights; it acts in "the general interest of the EU" (Commission v Germany, para. 21) and is by definition "concerned" by violations.

Forbearance argument

Kelemen/Pavone argue the Commission has become less active enforcing EU law via infringement procedure; Article 259 TFEU (MS-initiated) could be a workaround, though MS rarely use it directly, preferring to intervene in Commission-led cases.

Article 279 TFEU interim measures

To avoid irreparable harm pending judicial review (prevent the MS from aggravating the situation); ordered by the President/Vice-President of the Court of Justice (Statute Art. 39).

steps for art. 258 proceedings

1. general rule: commission has broad discretion

2. author of the infringement: MS - incl.. violation by any branch of public power

3. general rule: scope of infringement is extremely broad

4. pilot system

5. pre-litigation phase

6. litigation phase

7. court decision

- possibility on art. 260(2) if not complied with

commission discretion art. 258 (1)

The Commission "may" bring a matter before the Court — it decides whether to initiate proceedings and cannot be forced to do so (Commission v Luxembourg, Zero Ratings).

author of infringement (2)

violation by any breach of public power in MS

Any branch of public power in the MS — legislative, administrative, or judicial — including constitutionally independent institutions, federal/regional bodies, and (in some cases) private entities under state control.

scope of infringement (3)

Extremely broad:

Rules breached:

- any violation of EU law (even minor/trivial) - no de minimis rule

- breaches of general principles (e.g., sincere cooperation, Art. 4(3) TEU)

- and international law obligations from EU-concluded treaties (Art. 216(2) TFEU).

Conduct of MS:

- A positive act (enacting a law contrary to EU rules)

- an omission (failing to repeal a contrary domestic provision)

- or a consistent and general administrative practice contrary to EU law (isolated cases insufficient).

transpotistion of directives

- Non-communication (failure to notify transposing measures);

- non-conformity (directive wrongly transposed);

- incorrect application (correctly transposed but improperly applied).

General and persisitent infringements

- Structural or systemic infringements, e.g., the Italian Waste case, where the Commission criticized Italy's overall approach to waste management.

pilot system (4)

An informal exchange of views between the MS and Commission before the pre-litigation phase, allowing the MS to explain its situation more openly

pre-litigation phase (5)

An "indispensable procedural guarantee" (Commission v Belgium, para. 25); if omitted by the Commission, the infringement action is immediately inadmissible.

comprises:

1. letter of formal notice - Commission formally notifies the MS of the alleged infringement and requests further information

2. MS must answer within a reasonable time limit

3. reasoned opinion - Issued if the MS's reply is absent or unsatisfactory; it is a coherent, detailed statement of reasons for initiating the infringement procedure (Commission v Italy, C-279/94) and sets a reasonable response period. --> duty to provide reasons applies

litigation phase (6)

consequences of non-response →If the MS fails to respond adequately after the reasoned opinion's deadline, the Commission may bring the case to Court

-the burden of proof is on the Commission, and the

- application must match the grounds in the reasoned opinion/letter of formal notice

court decision (7)

art. 260(2) may be possible if the MS then does not comply with the judgement

art. 259

allows MSs to bring infringement proceedings against other MS. do not need to show an interest in order to act: they are entitled to bring an action against another Member State regardless of whether they believe that they are affected by the conduct of that Member State, thus acting merely in the interest of the law

art. 259 proceedings steps

(1) Inter-state dispute — one MS alleges another MS failed an EU obligation;

(2) the complaining MS must first bring the matter to the Commission;

(3) only if the Commission does not act can the MS proceed under Art. 259

art. 259 in practice

Extremely rare in direct use (e.g., Austria v. Germany on motorway financing; Slovenia v. Croatia on a border dispute; Italy v. Austria on the Brenner heavy-vehicle ban);

MS prefer informal complaints to the Commission, though intervention in Art. 258 proceedings is common

art. 260

sanctions regime:

1. MS needs to terminate their conduct (art. 260(1))

2. imposition of fines for:

a) Fine for non-compliance with previous infringement decision (art. 260(2))

b) fine for failure to fulfil obligation to notify measures transposing a directive (art. 260(3))

art. 260(2)

Fine for non-compliance with previous infringement decision

Commission considers:

(1) seriousness of infringement,

(2) duration,

(3) ability of the MS to pay,

(4) mitigating/aggravating circumstances

(e.g., Commission v Hungary: €200m lump sum + €1m/day).

art. 260(3)

fine for failure to fulfil obligation to notify measures transposing a directive

Accelerated penalty mechanism (introduced by Lisbon, no need for a prior infringement ruling) requiring:

(1) the MS failed to "notify measures transposing a directive," and

(2) the directive was adopted under a legislative procedure

- commission discretion and recourse to both types of penalties (Fisheries case)

- failure to notify is a procedural obligation of MS (Comm v Belgium)

- A situation of erroneous (incorrect) transposition is excluded from Art. 260(3) and must be addressed under normal Art. 258 proceedings (AG Medina, C-879/24, para. 90).

- commission obligation to state reasons (Comm v Romania)

if a MS does not pay

As a last resort, the EU can "offset" — deducting unpaid fines from money owed to the MS under EU budgetary/cohesion funds.

art. 259 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. Comm v France (Fisheries case) --> application of art. 260(2)

2. Comm v Belgium --> application of art. 260(3), failure to notify procedural obligation

3. Comm v Romania --> application of art. 260(3), comm obligation to state reasons

Comm v France (Fisheries case)

- Rationale of Financial penalties

- Application of penalty payment vs lump sum (rationale)

While the imposition of a penalty payment seems particularly suited to inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, the imposition of a lump sum is based more on assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment which initially established it

Recourse to both forms of penalties is not precluded

Comm v Belgium

Failure to notify as a procedural obligation of MS; interpretation of article 260(3) TFEU

- That notification must contain sufficiently clear and precise information on the substance of the national rules which transpose a directive. Thus, notification, to which a correlation table may be added, must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by that directive

Comm v Romania

Commission discretion re. Financial penalties art. 260(3) TFEU

Commission not required to state reasons on a case-by-case basis but it is required to state reasons for the nature and the amount of the financial penalty