Infringement Proceedings:
The Administrative Phase:
Article 258 TFEU: If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.

The administrative phase involves the Commission deciding whether an action should be brought to the CoJ
Sates may be subject to infringement proceedings for failing to comply with the duty to:

Secure legal certainty of EU Law
Actively police EU law
Penalise infringements of EU law
Notify the commission of any problems in applying or enforcing EU law (eg. failing to implement a directive)

Secures the rule of law by constraining member states for breaking EU Law or upon failing to apply a Directive within a specified time period.

Proceedings:

Informal letter to member state
Letter of formal notice informing the Member State of the breach

Commission v Denmark: Commission bought action against Denmark for failing to transpose a Directive. The Danish government claimed this was insufficient as it had only noted the failure to act and not set out what positive steps the government needed to take to remedy the breach. Held, the letter of formal notice’s purpose was to frame the dispute and indicate to the Member State to submit its observations. Although in this case the Commission had failed to notify of any remedial acts, this did not prevent the Danish government from submitting its observations. Letter of formal notice informing the Member State of the breach (anything not in this is inadmissible unless it does not alter the dispute subject)

Commission v Ireland: Commission received complaints of illegal dumping of waste across Ireland. The Irish government argued the Commission failed to provide sufficient evidence. “Account should be taken of the fact that, where it is a question of checking the national provisions intended to ensure effective implementation of the directive… it is largely reliant on the information provided by any complaints… it is primarily for the national authorities to conduct the necessary investigations.” If the Commission notifies the state of a breach with sufficient evidence, it is the duty of the state to investigate the breach in order to prove otherwise. The onus on the Commission is only to make a prima facie case
Submission of observations of the Member State
Reasoned Opinion by Commission outlining the Breach and deadline for compliance

Commission v Netherlands: Issuing of a reasoned opinion by Commission outlining the breach- “The Commission’s reasoned opinion and the [original] application must be based on the same grounds and pleas… the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion… the Commission is obliged to specify precisely in that the opinion the grounds of complaint which it already raised more generally in the letter of formal notice… that requirement is essential to delimit the subject-matter of the dispute.”
Period of member state to comply with reasoned opinion
Seperate referral to court by Commission for continuing non-compliance
Judgement by Court.

The Judicial Phase:

Commission v Germany [2003]: Lower Saxony government broke EU law on the collection of waste. The Commission bought infringement proceedings before the ECJ, the Court held this as admissible. “The Commission does not have to show there is a specific interest in bringing action… Given its role as a guardian of the Treaty, the Commission alone is therefore competent to decide whether it is appropriate to bring proceedings against a member state for failure to fulfil its obligations... The Court is responsible for determining whether or not the alleged breach of obligations exists.” whereas the commission has discretion on whether to bring forth an action, depending on the level of non-compliance and whether it is a serious problem.

Commission v Greece [1999]: The Court found a breach of EU law against Greece that its hospitals’ were excluding devices that met EU law standards in its procedures for tendering medical devices. “A failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged [administrative] practice.” The duration, geographical spread and number of infringements must be considered when pursuing an infringement.
Note: these documents and proceedings are entirely secret.

Commission v Poland: Commission bought action against Poland’s Law of Seeds which banned the marking of genetically modified food. This violated a Directive on marketing approval. “Member states cannot rely upon public opinion [the people’s beliefs] to change a harmonising measure adopted by the Community” However, it is not contended that they may not use ethical nor religious arguments. This may suggest an infringement proceeding may be a form of public law as it focuses upon the functioning of EU law. It must be noted that it is also a constraint to action. Art 258 TFEU may also be used as a public policy tool: its main purpose it to ensure the effective functioning of EU policy. If there was no form of punishment through infringement proceedings, no policy would be enforced or realised by the member states.

State and Private Agencies:

Commission v Italy [1988]: The Italian Court of Cassation has consistently interpreted Italian law on Custom Duties in a way that conflicted with EU law. “A Member State’s failure to fulfil obligations may... be established under at 258 TFEU whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations… where national legislation has be the subject of different judicial constructions, some leading to the application in compliance with Community law, other the opposite application… it is not sufficiently clear to ensure its application in compliance with Community law.” The acts and omissions of state agencies will attract liability. The state is responsible for these agencies even if they are constitutionally independent. This includes governmental, regional, local, regulatory and independent private agencies.

Commission v Germany [2002]: Although it has never been put into practice, it is implied that if a state agency which is not subject to public authority, but is performing a public service, it may be considered liable as it is considered to have “special powers”. This includes private bodies.

Interim Measures:

Article 279 TFEU: The CoJ may adopt interim measures

Commission v France [2001]: Mad cow disease was considered a matter of urgency and so there was an imminent risk of irreparable harm. A court may prescribe any necessary interim measures.

Sanctions for Continuous Non-Compliance:

Article 260:
1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court.

2. If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgement of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall 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 the Member State concerned has not complied with its judgement it may impose a lump sum or penalty payment on it. This procedure shall be without prejudice to Article 259. 3. 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 judgement

Francovich: Decided before sanctions were enforced, state liability may not be worth the cost of proceedings, causation may be hard to prove and certain conditions may be unsatisfied.

Commission v Greece [2000]: Greece’s toxic waste dump in Crete: although a fine was enforced Greece continued to dump over 6 months. The duration of the infringement, the degree of seriousness and the ability of the member state to pay and the number of votes held by the Member State in the Council must be considered.

Commission v France: France failed to comply with EU fisheries law, allowing undersized fish to be sold. France did not comply with the previous judgement under Art 258 TFEU and so the Commission brought forward proceedings for a fine under Art 260 TFEU. The Commission was granted both a lump sum and a penalty payment: the lump sum was believed to punish the Member State’s behaviour; whereas the Penalty was to induce the Member State to comply as quickly as possible (they have a “coercive force”). This gave the courts full discretion as to whether both sanctions could be applied. The amendments speed up the procedure, some cases had periods of over 13 years, but a threat of fine does not always necessarily mean a judicial judgement will be enforced in the end. The assumption that a lump sum or penalty payment can be imposed was overturned.

Commission v Italy [1985]: Force majeure- an unpredictable and overwhelming catastrophe making compliance impossible may be used as a defence

Defences:
Procedural Irregularities
The deadline set may be unreasonably short
The Commission submitted a complaint in the reasoned opinion which was not in the letter of formal notice.
The Commission has expanded the action beyond what it was- they have misunderstood the requirements of Union Law or have failed to take into account National Law.

It is no defence to say that national law is applied correctly because objectively speaking the National Law is still incompatible with that of Union law
It is no defence to claim that the provisions of Union law are directly effective.

Complaints:
Star Fruit v Commission: Belgian banana trader claimed he had been prejudiced against by the French market, contrary to EU law. The trader complained to the Commission whom did not commence proceedings. Star Fruit sought to take the Commission to court for failure to act. The court held this as inadmissible: “the commission is not bound to commence proceedings… [it] has a discretion which excludes the right for individuals to require the institution to adopt a specific position… consequently the applicant cannot be entitled to raise the objection that the Commission failed to commence proceedings.” If one were to bring a complaint against the commission it would be via Art 263(4) TFEU “Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.” This is an entirely different act of separate individual concern. Member states cannot complain during the procedure.

A new complaints procedure was submitted in 2002:

· Anybody can bring a complaint free of charge

· All correspondence must be recorded

· The commission will inform the complainant after each step is taken

· The case must be closed within 1 year

· If the commission closes the case the complainant has 4 weeks to submit comments.

Commission v UK: a complaint against the UK was upheld for failing to implement a regulation which provided for the compulsory installation of tachographs in lorries used to carry dangerous goods. The ECJ has jurisdiction to hear complaints that a member state has not fulfilled its obligations under the treaties, to decide whether the Commission have acted legally, and to decide disputes between member states about the subject-matter of the treaties.

Note: Article 259 TFEU: 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 whom 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 the absence of such opinion shall not prevent the matter from being brought before the Court. THIS IS RARELY USED IN PRACTICE

Commission v France: A member state cannot adopt corrective measures for the failure of another member state to comply with the Treaty.

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infringement proceedings in eu law

Infringement Proceedings