Infringement proceedings against MS

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Introduction

People can make complaints to the Commission- individuals, businesses, NGO's. Novel feature of Union law.

  • A258, 259 and 260 TFEU- bring proceedings before the court before any member state who infringes the Treaties. 
  • Arts 7 TEU and 354 TFEU- Treaty rights can be suspended when committed serious and persistent breach. Procedure heavy one- hasnt been used. 
  • Detecting infringements
  • C47/96 SDDDA v Commission 1996

The Commissions enforcement priorites include- 

  • the transposition of directives (White Paper on European Governance 2001)
  • breach of legislative acts designed to boost growth in a single market (Better Governance for the Single Market 2012)
  • Implementation of Union legislation on asylum (A European Agenda on Migration 2015) 

May have many infringements at once. The court want to decide within 12 months. 

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Statisitcs

  • 57 infringement actions launched in 2014
  • Represented most of the 74 direct actions brought before the ECJ in 2014
  • in 2014, infringement declared in 41 cases
  • Only 3 applications dismissed
  • In 2014, highest number of infringement actions brought against Greece (7) and Belgium (6)
  • 3 actions brought against UK in 2014

Most complaints wont be pursued. MS try to settle cases as they go along.

  • Overall Italy has most often been the subject of such actions: defendant on 641 occasions up to the end of 2014. 
  • The corresponding figure for the UK is 137
  • Variation in the extent to which MS comply with their Treaty obligations
  • Effective way of inducing MS to toe the line. 

Eurosceptics criticised the fact that the UK apparently tries much harder to comply than other countries which apparently puts us at a disadvantage. 

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The administrative phase

  • Letter of formal notice- subject matter of dispute. Doesnt matter if the MS replies or not. 
  • MS may submit observations- done by a formal letter also.
  • Reasoned opinion- cant include a complaint the MS hasnt had a chance to comment on.
  • Deadlines- continue as judgement may be relevant for damages later.
  • Scope of proceedings.
  • In 2014 the Commission closed: 580 infringements after sending a letter of formal notice and 190 cases after the reasoned opinion.

Corresponds to the first paragraph of A258- poorly drafted. Requires Commission to take two steps but puts them the wrong way round. 

If they dont comply after the administrative phase moves onto judicial phase-

C422/92 Commission v Germany 1995- it was 'somewhat surprising that the Commission brought its action more than 6 years after the entry into force of the basic German legislation on the shipment of waste, and did so at a time when the Community had in fact changed its policy in that field along the same lines as those followed by that legislation.'

No specific time they have to bring a claim in but hopefully should be quickly. 

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Judicial phase

Court has to prove the allegation. If suceeds says the MS has failed its obligation and says that they have breached and how. 

A260 TFEU- C83/82 Procureur de la Republique v Waterkeyn 1982- the courts of the defendant state 'are bound by virtue of A260 to draw the necessary inferences from the judgement of the Court. However.. the rights accruing to individuals derive, not from that judgement, but from the actual provisions of Union law having direct effect in the internal legal order.' Over 40 cases withdrawn before judgement. Withdrawn if it has been complied with. Full compliance should be achieved within 12 months. 

Interim measures- case needs to be before the court, no application for interim measures until before the court. 

  • A279 TFEU- 'The Court of Justice of the European Union may in any cases before it prescribe any necessary interim measures'
  • A83(1) Rules of procedure. 
  • C1/00 Commission v France 2001

This doesnt enable rapid intervention. 

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Defences

  • Has the Commission respected the procedural requirements imposed on it by the Treaty?
  • If so, is the situation in the defendant state objectively consistent with the requirements of Union law? Can question what the Union law requires.

C215/98 Commission v Greece 1999

C167/73 Commission v France 1974

C104/86 Commission v Italy 1988

Most common defence is that the Commission hasnt respected procedural requirements. 

  • Force majeure- exceptional- An unpredictable and overwhelming catastrophe making compliance impossible C101/84 Commission v Italy 1985
  • Has the Commission properly understood the requirements of Union law or the States own national law? 

Court isnt interested in how the non compliant law has arisen.

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Defences

  • Failure by an EU institution C90 and 91/63 Commission v Luxembourg and Belgium 1964. 
  • Failure by another MS- C232/78 Commission v France 1979- 'a MS cannot under any circumstances unilaterally adopt, on its own authority, corrective measures or measures to protect trade designed to obviate any failure on the part of another MS to comply with rules laid down by the Treaty.' MS cant take the law into their own hands. 
  • Internal circumstances- C39/88 Commission v Ireland 1990- 'a MS may not plead internal circumstances in order to justify a failure to comply with obligations and time limits resulting from Community law.. practical difficulties which appear at the stage when a Union measure is put into effect cannot permit a MS unilaterally to opt out of fulfilling its obligations.' Sometimes is very hard to get legislation through legislative process. Dont allow this excuse.

C77/69 Commission v Belgium 1970- the obligations arising from the Treaties 'devolve upon States as such and the liability of a MS under A258 arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution.' Obligations attach to the State as a whole. 

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Defences

  • Conduct of national courts- could indirectly do against gov saying their fault the legislation is not clear. Very provocative step to take, may seem to be an attack against a national judiciaries independence. C129/00 Commission v Italy 2003- 'isolated or numerically insiginificant judicial decisions in the context of case law taking a different direction, or still more a construction disowned by the national supreme court cannot be taken into account.' 'However a widely held judicial construction, which as seen here, had been confirmed by the supreme court was relevant to the question whether the state concerned had failed to fulfill its obligations.' 
  • Conduct of individuals- when state not taken appropriate steps to prevent individuals behaviour against other rights. C265/95 Commission v France 1997- 'in the present case the French government has manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism which jeopardize the free movement on its territory of certain agricultural products, originating in other MS and to prevent the recurrence of such acts.' 
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Sanctions

Article 260 (2) TFEU-

  • Commission cannot ask for imposition of financial penalty in initial application to court. 
  • No additional penalities if MS refuses to pay
  • Commission not required to specify amount of sanction at outset
  • No limit set on amount of penalty the Court may impose. 

MS normally comply. Maastricht added second paragraph. Lisbon added third. 

Potential weaknesses of the priniciple of State liability (Francovich)- 

  • the conditions laid down in Courts case law may not be satisfied
  • Loss suffered by potential plaintiff may be too small to justify cost of bringing proceedings.
  • Causation may be hard to prove
  • May be undesirable to leave matters until a willing litigant emerges. 
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Sanctions

Can take 8-18 months to sort sanction. 

Commission communication on the application of A228 of the EC Treaty, December 2005- Criteria to be taken into account by Commission in fixing amount of sanction-

  • seriousness of infringement
  • duration of infringement 
  • need to deter further infringements
  • MS capacity to pay, represented by GDP
  • number of votes held by MS in Council. 

C387/97 Commission v Greece 2000- 'the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Union law is applied uniformly, and effectively, are in principle, the duration of the infringement, its degree of seriousness and the ability of member state to pay. In applying those criteria, regard should be had in particular to the effects of failure to comply on private and public interests and to the urgency of getting the MS concerned to fulfill its obligations.' 

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Sanctions

C304/02 Commission v France 2005- 'the imposition of a lump sum is based more on assessment of the effects on public and private interests of the failure of the MS concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgement which initially established it.' This case led to the Commission modifying its policy on sanctions. The Court imposed on France: a) a penalty payment of €57,000,000 for each period of 6 months from delivery of its second judgement during which the breach persisted and b) a lump sum of €20'000'000. 

Lump sum may reflect institutional disapproval. Both penalities are allowed, especially when breach persists. Proposed to encourage compliance. Penalty payment may not be enough, pay quickly and so pay less even though lots of inconvience. 

Commission communication of December 2005 on application of A260- The Commission hence force ask the Court to impose- 

  • a penalty payment for each day of delay after the judgement under A260 and
  • a lump sum to penalise the continuation of the infringement between the first judgement under A258 and second judgement under A260 (new bit). 
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Sanctions

The Lisbon Treaty- A260(3) TFEU: cases where 'the MS concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure.' 

Communication from the Commission on the implementation of A260(3). Doesnt apply where have notified but Commission thinks measures are inadequate. 

Common after A258 can ask for financial penalty in one type of situation only. In its initial letter to the court. 

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